Gurdev Singh, J.
1. This revision petition has been preferred against the order dated 28.4.2008 passed by learned Rent Controller, Ludhiana, vide which he dismissed the application filed by the petitioner-landlord under Order 6 Rule 17 CPC for amendment of the ejectment application.
2. The facts relevant for the disposal of the present revision are that the petitioner filed ejectment application against the respondents tenants for their ejectment from the shop in dispute forming portion of property bearing Unit No. 432/98 situated at Noor-wala Road, Ludhiana, on the ground on non-payment of rent. During the pendency of that ejectment application, he filed application under Order 6 Rule 17 CPC read with Section 151 CPC for amendment thereof so as to add the following Para:
(iii) That the petitioner urgently and bonafidely requires the property in dispute for the start of laboratory which is very much necessary for the petitioner as the patients are suffering heavily on account of their reports. The petitioner is totally dependent upon the different laboratories which are situated at the distance of 4/5 Kms. away from the property in which the petitioner is carrying on his practice as a Doctor and the area where the petitioner is doing his practice, is a very densely populated, remote area and maximum residents/patients are not in a position to get themselves medically checked, which are required that their tests viz. blood, urine etc. etc. should be done first to diagnose their disease and patients have to wait for 2/3 days approx. and during the period of waiting for getting their laboratory reports from different places which are far away, the patients usually suffer more for non-diagnosis and maximum patients are usually suffering due to non-availability of laboratory reports in time. The clinic, in which the petitioner is doing his practice with his wife i.e., respondent No. 3, is not having enough space to check the patients properly. Due to paucity of space, the petitioner is suffering heavily as a temporary wooden cabin is being used for dispensary which has also shortened the space of clinic, besides a temporary wooden bench meant for checking of lady patients. On the other hand, the patients cannot sit in the clinic properly due to paucity of space ad usually they have to stand in Verandah and property in dispute would serve the problem of the petitioner as the petitioner would install or affix chairs, settles for the sitting purpose of patients who have to wait for their turn. The road where the clinic of the petitioner is located, is very rushy, congested and busy. The petitioner is doing his practice for the last about 20/22 years and the area, where the clinic is situated, was earlier not congested nor thickly populated. Now the population of the area has increased manifold and for the last few years, the patients are suffering from the diseases such as pneumonia, gastric problem, glands problems besides so many other gastric problems and last year, patients suffered heavily due to dengue fever and without their in time laboratory reports regarding disease, the petitioner was not in a position to treat them effectively. The property in dispute is very well suitable to the petitioner and the petitioner has sufficient funds to install laboratory equipments and would employee laboratory technician as well as Compounder and Nurses which are required for the said purpose. On the other hand, it will also serve the petitioner to make their patients sit on the chairs and tables who have to wait for their turn for medical examination and laboratory reports. All reputed laboratories, which are fitted with latest equipment, are situated for away from the clinic of the petitioner and their distance is not less then 4/5 Kms and in case, the petitioner starts laboratory in the property in dispute, there would be great benefit to the patients as well to the practice of the petitioner to diagnose the disease on the basis of laboratory reports and for the better treatment to the patients. It is also not out of place to mention here that there are so many types of disease and without their proper diagnose in time, the patient usually suffers heavily for non-availability of laboratory reports in short span of time and the petitioner is totally dependent upon the reports of the laboratories which are far away as stated above and the patients usually suffer for non-availability of their laboratory reports in time. Thus the property in dispute is urgently required subsequently by the petitioner to start laboratory in the property in dispute. On the other hand, the same is very suitable to the petitioner, as it is situated just adjacent to the clinic of the petitioner and the petitioner can remove the intervening wall which would help the petitioner to give proper and effective hearing to the patients by way of installing chairs, tables, setties etc. Thus, the need of the petitioner is bona fide and property in dispute is urgently required to start laboratory detail of which has been given above. Moreover, the petitioner has two other shops which are in possession of different tenants but the property in dispute being adjacent tot the clinic of the petitioner is very much suitable to the petitioner to start laboratory as stated above.
(iv) That the petitioner is not in possession nor has vacated any other non-residential/commercial property within the local Municipal Limits of Ludhiana from the date of filing the petition till date.
3. According to him, during the pendency of the ejectment application subsequent events arose and now he requires the property, in dispute, for the installation of laboratory to meet out the requirements of patients and to expand his business. The application was contested by respondents No. 1 and 2. In their reply, they denied the contentions of the petitioner and according to them, no subsequent event has occurred and the proposed amendment cannot be allowed, which is mala fide. They also pleaded that the petitioner failed to produce the evidence since 18.8.2005 and last opportunity was granted to him to produce his entire evidence on 17.5.2007. No evidence was produced on that date and for getting an adjournment, this application was filed. They are contesting the ejectment application on the ground of non-payment of rent since the year 2003 and they have already tendered the entire arrears of rent as per the assessment order dated 15.6.2005 passed by the Rent Controller. The learned Rent Controller dismissed the application by relying upon the judgment of this Court reported in 2003(3) Civil Court Cases 707 and judgment of the Apex Court reported in 2007(1) Civil Court Cases 50 and by holding that the amendment cannot be allowed after the trial has commenced when the matter sought to be taken up by way of amendment of pleadings was already in the knowledge of the petitioner.
4. I have heard learned Counsel for both the sides and carefully gone through the case file.
5. It has been submitted by the counsel for the petitioner that the ejectment application was filed only on the ground of non-payment of rent as ground of personal necessity was not available to the petitioner at that time. Subsequent events took place which necessitated the amendment of the ejectment application so as to take up that ground. The multiplicity of proceedings is to be avoided and law of amendment requires that such a ground, which has arisen subsequently be allowed to be taken up by way of amendment. The petitioner cannot be made to suffer on account of amended Order 6 Rule 17 CPC as the provisions of CPC are not applicable to the proceedings before the Rent Controller. He prayed that revision be accepted and application for amendment be allowed.
6. On the other hand, it was contended by learned Counsel for the respondents that the application filed by the petitioner is mala fide one as the same was filed after four years of the filing of the ejectment application itself and after the petitioner failed to produce any evidence in support of the ground originally taken up by him in that application. It cannot be said that any such event has occurred subsequently which has necessitated the amendment of pleadings so as to take up the ground of personal necessity. Once the trial has commenced, the petitioner has no right to amend his pleadings as he has failed to prove that in spite of the exercise of due diligence, he failed to move that amendment application before the commencement of the trial.
7. There is no dispute about the proposition put forth by learned Counsel for the petitioner that the provisions of CPC are not applicable to the proceedings under the East Punjab Urban Rent Restriction Act, 1949, but the principles contained therein, which are based on justice, equity and good conscience, are certainly applicable. As per proviso to Order 6 Rule 17 CPC, 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 parties could not have raised the matter before the commencement of the trial. This very proviso came up for consideration before the Apex Court in Vidhyabai and Ors. v. Padmalatha and Anr. : 2009 (2) SCC 409 it was held that:
By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), Parliament inter alia inserted a proviso to Order 6 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.
8. This very proviso also came for consideration before the Apex Court in Raj kumar Gurawara v. S.K. Sarwagi & Co.(P) Ltd. (2008)14 SCC 364 it was held that:
In order to consider whether the appellant-plaintiff has made out a case for amendment of his plaint, it is useful to refer Order 6 Rule 17 CPC 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:
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 the trial.The first part of the rule makes it abundantly clear that at any stage of the proceedings, parties are free to alter or amend their pleadings as may be necessary for the purpose of determining the real questions in controversy. However, this Rule is subject to proviso appended therein. The said Rule with proviso again substituted by Act 22 of 2002 with effect from 1.7.2002 makes it clear that after the commencement of the trial, no application for amendment shall be allowed. However, if the parties to the proceedings are able to satisfy the court that in spite of due diligence they could not raise the issue before the commencement of the trial and the court is satisfied with their explanation, amendment can be allowed even after commencement of the trial.
9. This was not disputed that the ejectment application has been repeatedly adjourned for the evidence of the petitioner and he has failed to produce any evidence so far and that the last opportunity was granted to him to produce his evidence. The application for amendment was filed on that date which itself shows that the amendment is mala fide one. Nothing has been stated in the amendment application on the basis of which it may be concluded that the ground of personal necessity has arisen after the commencement of the trial or that the facts which the petitioner wants to plead were not within his knowledge despite exercise of due diligence before the commencement of the trial.
In these circumstances, the Rent Controller was justified in dismissing the application of the petitioner and order 28.4.2008 does not suffer from any illegality.
The revision petition is dismissed accordingly.