S.B. Civil Writ Petition No.5144/2013 Jagdish Prasad and anr. V/s Prithviraj and anr. Order dt:
10. 9/2013 1/12 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER
1. S.B. Civil Writ Petition No.5144/2013 Jagdish Prasad and anr. V/s Prithviraj and anr.
2. S.B. Civil Writ Petition No.4977/2013 Girditta Ram and anr. V/s Satish Chandra 3. S.B. Civil Writ Petition No.4985/2013 Shri Chand V/s Prithviraj and anr.
4. S.B. Civil Writ Petition No.5143/2013 Jagdish Prasad and anr. V/s Prithviraj and anr.
5. S.B. Civil Writ Petition No.5778/2013 Shri Chand V/s Prithviraj and anr. Date of Order :::
10. h September, 2013 PRESENT HON'BLE Dr. JUSTICE VINEET KOTHARI Mr.R.R.Nagori, Sr. Advocate assisted by Mr.Alkesh Agarwal, for the petitioners. Mr.S.L.Jain, for the respondents. -- BY THE COURT:
1. The defendants – lessees have challenged the impugned orders dtd.6.4.2013 of the learned trial Court of Civil Judge (Sr. Division), Suratgarh, Dist. Sri Ganganagar in the eviction suits filed by the respondents – plaintiffs – Prithvi Raj and anr. on the basis of notice under Section 106 of the Transfer of Properties Act on 9.4.2005 terminating the lease. S.B. Civil Writ Petition No.5144/2013 Jagdish Prasad and anr. V/s Prithviraj and anr. Order dt:
10. 9/2013 2/12 2. The learned trial Court by the impugned orders dtd.6.4.2013 has rejected the application for amendment of the written statement as well as the application for taking the notice dtd.22.8.2006 on record holding that the said eviction suit was at the final stage of arguments and evidence of both the parties had been concluded and at this stage, seeking amendment of the written statement on the ground that the plaintiffs had served another notice on the defendants – lessees on 22.8.2006 after the written statement had been filed by the defendants – petitioners in the said suit on 2.1.2006, therefore, the first notice under section 106 of the Transfer of Property act dtd.9.4.2005 stood waived was not required to be taken on record.
3. Mr. R.R.Nagori, Sr. Counsel, assisted by Mr. Alkesh Agarwal vehemently submitted that once the second notice for demand of rent was served by the respondents – plaintiffs under the new Rajasthan Rent Control Act, 2001 demanding the rent due of Rs.65,000/- and the defendants deposited the due rent against that also, the initial notice terminating the lease under section 106 of the Transfer of Property Act stood waived and therefore, the defendants had already filed application in this regard before the learned trial Court on 23.11.2006 (Annex.R/1), which came to be rejected by the learned trial Court vide order dtd.20.4.2010 (Annex.R/2) holding that since new Rent Control Act, 2001 did not apply to Suratgarh within the S.B. Civil Writ Petition No.5144/2013 Jagdish Prasad and anr. V/s Prithviraj and anr. Order dt:
10. 9/2013 3/12 State of Rajasthan, its population being below 50000, therefore, the notice subsequently served by the plaintiffs was not a valid notice and the application filed by the defendants for dismissing the suit was liable to be rejected. Mr. R.R. Nagori, therefore, submitted that the amendment sought by the said application under Order 6 Rule 17 C.P.C. would render the present suit filed by the plaintiffs infructuous since the notice under Section 106 of the Transfer of Property Act should be deemed to have been withdrawn by the plaintiffs – respondents and therefore, it was necessary for the learned trial Court to allow such amendment application. He relied upon the following case-laws in support of his submissions, which are discussed below..
4. In the case of Pankaja V/s Yelappa reported in 2004 DNJ(SC) 826, the Hon'ble Supreme Court has held that even in case of substantial delay, to minimize the litigation, amendment should be allowed at any stage.
5. In the case of Ragu Thilak D. John V/s S. Rayappan and ors. reported in 2001(2) SCC 472.the Hon'ble Supreme Court has held that amendment could not be declined and to minimize the litigation it should be allowed and even plea of limitation can be raised after allowing the amendment.
6. The learned counsel for the petitioner also relied uopn S.B. Civil Writ Petition No.5144/2013 Jagdish Prasad and anr. V/s Prithviraj and anr. Order dt:
10. 9/2013 4/12 the decision of Hon'ble Supreme Court in the case of Baldev Singh V/s Manohar Singh reported in 2006 DNJ (SC) 718, in which the Hon'ble Supreme Court has held that mere delay is not a ground for rejection of the application for amendment and there is wider and liberal discretionary power of the court in allowing the amendment.
7. In the case of Usha Balasaheb Swami and ors. V/s Kiran Appaso Swami and ors. reported in 2007(5) SCC 602.the Hon'ble Supreme Court has held the court is conferred with power, at any stage, of the proceedings to allow alteration and amendments of the pleadings if it is of the view that such amendments may be necessary for determining real question in controversy between the parties. It has been further observed that amendment of the plaint and amendment of the written statement stand on different footings and in case of amendment of written statement, the courts should be more liberal in allowing the application than that of a plaint as the question of prejudice would be far less in the former than in the latter.
8. In the case of Sajjan Kumar V/s Ram Kishan reported in 2005(13) SCC 89.the Hon'ble Supreme Court held that though the appellant ought to have been diligent in promptly seeking amendment in plaint at an early stage of suit, more so when error in question had been pointed out in written statement, still due to above reasons, amendment should have been allowed. S.B. Civil Writ Petition No.5144/2013 Jagdish Prasad and anr. V/s Prithviraj and anr. Order dt:
10. 9/2013 5/12 9. On the other hand, Mr. S.L. Jain, learned counsel appearing for the respondents vehemently submitted that in view of earlier rejection of similar application by the defendants vide Annex.R/2 dtd.20.4.2010, there was no justification for the defendants to again move the present amendment application under Order 6 Rule 17 C.P.C. at the fag end of the trial and the said application was filed merely to delay the trial further and the learned trial Court has rightly rejected the same by the impugned order dtd.6.4.2013. He also relied upon the following judgments in support of his case and mainly, Mr. S.L. Jain, placed reliance on the judgment of Hon'ble Supreme Court in the case of Sarup Singh Gupta V/s S. Jagdish Singh and ors. reported in 2006 AIR SCW 1966.in which the Hon'ble Supreme Court overruling Calcutta High Court decision in para 6 held as under: “Section 113 leaves no room for doubt that in a given case, a notice given under S.111, Cl.(h) may be treated as having been waived,but the necessary condition is that there must be some act on the part of the person giving the notice evincing an intention to treat the lease as subsisting. The question as to whether the person giving the notice has by his act shown an intention to treat the lease as subsisting is essentially a question of fact. In reaching a conclusion on this aspect of the matter, the Court must consider all relevant facts and circumstances, and the mere fact that rent has been tendered and accepted, cannot be determinative. Thus where the landlord even after accepting the rent S.B. Civil Writ Petition No.5144/2013 Jagdish Prasad and anr. V/s Prithviraj and anr. Order dt:
10. 9/2013 6/12 tendered for period subsequent to quit notice, did file a suit for eviction and even while prosecuting the suit accepted rent which was being paid to him by the tenant, it cannot be said that by accpeting rent, he intended to waive the notice to quit and to treat the lease as subsisting.”
10. The learned counsel for the respondents Mr.S.L. Jain relied upon the following judgments:
1. Baldev Singh V/s Manohar Singh – 2006 AIR SCW 395.2. Rajkumar Gurawara V/s M.S. Sarwagi and Co. Pvt. Ltd. - 2008 - AIR SCW 400.3. Bhupendra V/s State of Maharashtra – 2008 AIR SCW 401.4. Gopal Krishna V/s Kishan Lal and ors. 2013(2) WLC (Raj.”
5. Mashyak Grihnirman Sahkari Sanstha V/s Usman Habib Dhuka – 2013 DNJ (SC”
6. Kamal Kishore Chitlagiya V/s Smt. Ramkawari Devi – 2013(1) WLC (Raj.”
7. Smt. Nirmala Devi V/s Smt. Tulsi Devi – 2013(1) WLC (Raj.”
11. From a perusal of the aforesaid judgment in the case of S.B. Civil Writ Petition No.5144/2013 Jagdish Prasad and anr. V/s Prithviraj and anr. Order dt:
10. 9/2013 7/12 Sarup Singh Gupta V/s S. Jagdish Singh and ors. (supra), it is clear that subsequent notice served by the plaintiffs under the provisions of new Rent Control Act, 2001 which Act did not apply to Suratgarh was no notice in the eye of law and mere demand of rent from the defendants cannot amount to waiver of earlier notice under Section 106 of the Transfer of Property Act terminating the lease itself and on the basis of the same, the eviction suit was being tried. Therefore, it cannot be said that the first notice stood waived or superseded by such subsequent notice. The fact remains that no such subsequent suit was filed under the provisions of Rent Control Act, 2001 in pursuance of such second notice and therefore, the notice was never acted upon by the plaintiffs – respondents. The payment of rent by the defendants in pursuance of said notice also does not alter the legal position of serving the notice under Section 106 of the Transfer of Property Act terminating the lease. Proviso to Order 6 Rule 17 C.P.C. is very clear and the amendment in the written statement cannot be permitted at the fag end of the trial. Filing of such application particularly once the application of same tenor and on same facts came to be rejected by the learned trial Court vide order dtd.20.4.2010 (Annex.R/2) cannot be appreciated and it can only be inferred that such application was filed with a view to delay the trial. The learned trial court has, therefore, rightly rejected the same.
12. Even otherwise, the scope of interference under Article 227 of the Constitution of India is very very limited and and the S.B. Civil Writ Petition No.5144/2013 Jagdish Prasad and anr. V/s Prithviraj and anr. Order dt:
10. 9/2013 8/12 Hon'ble Supreme Court has also time and again deprecated such interference. In the case of Shalini Shyam Shetty & Anr. Vs. Rajendra Shankar Patil, reported in 2010 AIR SCW 638.has held as under: -
“62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated: (a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different. (b) In any event, a petition under Article 227 be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 have been discussed above. (c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. S.B. Civil Writ Petition No.5144/2013 Jagdish Prasad and anr. V/s Prithviraj and anr. Order dt:
10. 9/2013 9/12 (d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, 'within the bounds of their authority'. (f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible S.B. Civil Writ Petition No.5144/2013 Jagdish Prasad and anr. V/s Prithviraj and anr. Order dt:
10. 9/2013 10/12 view. In other words the jurisdiction has to be very sparingly exercised. (i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar v. Union of India and Ors. reported in (1997) 3 SCC 26.and therefore abridgement by a Constitutional amendment is also very doubtful. (j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227. (k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu. (l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the S.B. Civil Writ Petition No.5144/2013 Jagdish Prasad and anr. V/s Prithviraj and anr. Order dt:
10. 9/2013 11/12 entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court. (n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 be unfettered but its exercise is subject to high degree of judicial discipline pointed out above. (o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality.
63. In the facts of the present case we find that the petition has been entertained as a writ petition in a dispute between landlord and tenant amongst private parties.
64. It is well settled that a writ petition is a remedy in public law which may be filed by any person but the main respondent should be either Government, Governmental agencies or a State or instrumentalities of a State within the meaning of Article 12. Private individuals cannot be equated S.B. Civil Writ Petition No.5144/2013 Jagdish Prasad and anr. V/s Prithviraj and anr. Order dt:
10. 9/2013 12/12 with State or instrumentalities of the State. All the respondents in a writ petition cannot be private parties. But private parties acting in collusion with State can be respondents in a writ petition. Under the phraseology of Article 226 , High Court can issue writ to any person, but the person against whom writ will be issued must have some statutory or public duty to perform.”
13. In the case of Jai Singh and ors. V/s Municipal Corporation of Delhi and Anr. reported in (2010) 9 SCC 38.in para 15 thereof, the Hon'ble Apex Court uses the words “the exercise of jurisdiction must be within the well-recognized constraints. It cannot be exercised like a “bull in a china shop”, to correct all errors of judgment of a court or tribunal, acting within the limits of its jurisdiction.
14. Accordingly, the present writ petitions are found to be devoid of merit and the same are accordingly dismissed. A copy of this order be sent to the parties concerned and the learned trial Court forthwith. (Dr. VINEET KOTHARI), J.
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