Judgment:
1. Sri Shiv Nath Tilhari, learned counsel for the petitioners and Sri Ratan Kant Sharma, learned counsel for contesting respondent.
2. By means of present writ petition, petitioner challenged the order dated 7.12.2009 passed by Additional District Judge, Court no.5 Sitapur in Revision No. 2 of 2007 ( Surjeet Singh and others v. Nand Kishore and others) thereby rejecting the application for amendment in written statement.
3. Undisputed fact of the present case are that the landlord/opposite party no.2 to 8 filed a suit for arrears of rent and ejectment in the Court of Judge Small Causes Sitapur, registered as SCC Suit NO. 17 of 1992 ( Sri Roop Kishore Mehrotra and others v. Amreek Singh and others ), on the ground that defendants/ petitioners have defaulted in payment of rent and for illegal sub-letting the property in dispute.
4. Judge, Small Causes Sitapur vide order dated 26.3.2007 allowed and decreed the suit .
5. Aggrieved by the same , the petitioners filed SCC Revision No. 2 of 2007. On 3.9.2009 arguments heard thereafter on 25.9.2009 plaintiffs/ respondents no. 4 to 8 sold a portion of the property in dispute so due to said development, on 6.10.2009 petitioners moved an application for amendment in written statement praying therein that the following facts may be added in the written statement:-
Dhara1- yeh ki dhara 15 ke vaad dhara 15a nimn likhene ki agya pradan ki jave. Dhara 15A- yet ki vadigan Vimal Kishore, Kaushal Kishore, Prakash Chandra, Jagdish Chandra, Smt. Pratibha , Smt. Ranjana va Smt.2 Durgarani ne ukt plot jo prativadi ka kiraye per diya gaya tha , ka bainama dauran nigrani kar diya hai jabki sabhi ansh sammalit hai aur is aadhar per vadigan ka vaad nirast kiya jane yogya hai . Yeh bainama 25.9.2009 ko kiya hai taha nirnyaya adi bhi nahi darshya hai.
6. On 28.10.2009, objection filed on behalf of the contesting respondents to amendment application moved by petitioners under Order VI Rule 17 CPC for amendment in written statement .
7. By order dated 7.12.2009, Additional District Judge Court no.5 Sitapur rejected application for amendment holding therein that alleged amendment is not necessary for adjudicating and deciding dispute involved in the matter and further held that the same moved in order to delay in proceedings of the matter filed in the year 1992 hence, the present writ petition filed thereby challenging the order dated 7.12.2009.
8. Sri S.N. Tilhari, learned counsel for the petitioners submits that order dated 7.12.2009 passed by respondent no.1 is illegal and suffers from error causing injuries to the petitioner and is also contrary to law as laid down by the Apex Court that while considering the amendment in written statement the Court should extremely liberal and should allow the same .
9. He further submits that the fact which sought to be brought by way of amendment is subsequent event taken place on 25.9.2009 when the part of the premises in dispute sold by the contesting respondents as such in view of the said fact amendment should be allowed so order passed by the Court below thereby rejecting petitioners' application for amendment is contrary to law and liable to be set aside. In support of his arguments , Sri S.N. Tilhari, learned counsel for the petitioners relied on the following judgments :-
(1) Ramdeo Upadhya v. Kshetriya Sri Gandhi Ashram, Saidpur, District Ghazipur and another ,1996(4) LCD 141.
(2) Sampath Kumar v. Ayyakannu and another , 20023 (20) 1186.
(3) Baldev Singh and others Etc. v. Manohar Singh and another, 2006 (24) LCD 1705.
10. Sri R.K. Sharma, learned counsel for contesting respondents submits that the execution of sale-deed during the pendency of the matter in question by respondents no. 4 to 8 and others is a transfer pendente-lite and would not effect the rights of the petitioners and sale-deed is subject matter of decree passed in revision, further as entire property has not been sold and only a portion of the property sold by the plaintiff so application for amendment moved by the petitioners is not maintainable. He further submits that arguments in revision concluded on 3.9.2009 and thereafter the petitioners moved application for amendment of written statement with malafide intention to delay in disposal of the revision and also to cause delay in delivery of judgment. The proposed amendment sought by the petitioner is not necessary to decide the real controversy between the parties in the matter in dispute in revision so correctly rejected by revisional court.
11. It is further submitted on behalf of contesting respondents that alleged subsequent event which sought to be brought by way of amendment by the petitioners in written statement have no bearing in the dispute between the parties in issue and it will not effect the real controversy between the parties i.e. illegal subletting by the petitioners. Further, subsequent event sought to be brought by amendment neither wipe out nor eclipsed the relief as claimed by the landlord in the matter in question as such there is neither any illegality nor infirmity in the impugned order dated 7.12.2009 passed by opposite party no.1 thereby rejecting the petitioners' amendment application , hence the present writ petition is liable to be dismissed . In support of his arguments , he relied on the following judgments.
(1) Hukam Chand v. OM Chand and others (2001) 104 Supreme Court Case 715
(2) Ram Nibas Gagar (dead) by Lrs. Debojyoti Das and others (2003) 1 Supreme Court Case 472 .
(3) Gaya Prasad v. Pradeep Srivastava (2001) 2 Supreme Court Cases, 604.
I have heard the learned counsel for the parties and gone through the record.
12. Before dealing the controversy involved in the present case, I feel it proper to have a glance to the provisions of Order 6 Rule 17 CPC quoted as under -
"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 trial"
13. From a bare perusal of Order 6 Rule 17 of the Code of Civil Procedure, it is clear that 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 the real question in controversy between the parties.
14. The proviso to Order 6 Rule 17 of the Code, however, provides that no application for amendment shall be allowed after the trial has commenced unless the court comes to a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
15. Hon'ble the Apex Court in the case of Ajendraprasadji N. Pandey & Anr. v. Swami Keshavprakeshdasji N. & Ors. 20075 AIR SCW 513, while dealing with the matter regarding amendment of written statement in paragraph No. 3 has held as under:-
"The respondents/plaintiffs filed application for amendment of the plaint of Special Civil Application No. 156 of 2002 and also produced further documents vide list Ex. 25. The trial Court granted amendment of the plaint and further dismissed the application of the appellants objecting the jurisdiction of the Court. The appellants preferred appeal to the High Court challenging the above order. The High Court admitted the appeal and finally dismissed the application for stay and directed the appeal to be placed for final hearing. On 31.01.2003, the new Acharya was appointed by the Committee constituted pursuant to the Resolution dated 15.05.2002. The appellants preferred special leave petition No. 3351 of 2003 before this Court challenging the order of the High Court. This Court modified the order of the High Court and requested Chief Justice of the Gujarat High Court to ensure that hearing and disposal of the appeal takes place as expeditiously as possible as according to this Court an important question was required to be decided in the matter. The High Court dismissed the appeal from Order No. 421 of 2002. SLP No. 1538 (Civil Appeal No. 3380) was preferred by the appellant No.1 before this Court against the above referred judgment of the High Court. The said appeal was decided and the matter was remanded back to the High Court, inter alia, observed that:
"the dispute centers around the question as to whether the removal of Ajendra Prasad Narejdra Prasad Pandey from the post of Acharya on the basis of a purported Resolution dated 11.5.2000 passed by a body calling itself as Satsang Mahasabha was valid. Intimately linked to this issue is the legality of the action taken to istall Rakeshprasadji Mahendraprasadji"##.." it is to be noted that legality of the appointment of Rakeshprasadji as Acharya was questioned. So, as noted above, the basis revolves around the question of legality of the decision taken to remove Ajendraprasadji and legality of appointment of Rakeshprasadji"##.."it is needless to note that while deciding the issue of injunction, the Courts have to consider three cumulative factors, viz. prima facie case, balance of convenience and irreparable loss. Definite findings are to be given on these aspects, on a prima facie basis."
16. In the case of B.K.N. Pillai v. P. Pillai and another, AIR 2000 SC 614, Hon'ble the Supreme Court has held as under:-
"The principles applicable to the amendments of the plaint are equally applicable to the amendments of the written statements. The courts are more generous in allowing the amendment of the written statement as question of prejudice is less likely to operate in that event. The defendant has a right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment other side should not be subjected to injustice and that any admission made in favour of the plaintiff is not withdrawn. All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original is was raised or defence taken, Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. Proposed amendment should not cause such prejudice to the other side which can not be compensated by costs. No amendment should be allowed which amounts to or relates in defeating a legal right accruing to the opposite party on account of lapse of time. The delay in filing the petition for amendment of the pleadings should be properly compensated by costs and error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement.
17. Hon'ble the Apex Court in the case of Andhra Bank v. ABN Amro Bank N.V. & Ors., AIR 2007 SC 2511, while dealing with the matters relating to the amendment in written statement has held that it is a well settled law that delay is no a ground for refusal of prayer of amendment in a written statement and further held that the amendment in a written statement should be considered liberally and the additional ground taken by a defendant to be incorporated in a written statement shall be allowed.7
18. In the case of Ramdeo Upadhya (Supra) this Court has held that the question as to whether the claim was barred by time or the plaintiff was entitled to damages, if any, would have been gone into only after permitting the amendment on the ground that permitting a plaint claiming for a relief of damages will be permitting a time barred claim to be entertained is wholly untenable in law.
19. In the case of Sampath Kumar ( Supra) Hon'ble Supreme Court has held that the merit of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment. However, the defendant is right to submitting that if he has already perfected his title by way of adverse possession then the right to accrued should not be allowed to be defeated by permitting an amendment and seeking a new relief which would relate back to the date of the suit and thereby depriving the defendant of the advantage accrued to him by lapse of time.
20. It has been further held in the case of Sampath Kumar (Supra) in para 12 that :-
On the averments made in the application , the same ought to have been allowed. If the facts alleged by plaintiffs are not correct it is open for the defendant to take such plea in the written statement and if the plaintiff fails in substantiating the factual accouterments and/ or the defendant succeeds in substantiating the plea which he would obviously be permitted to raise in his pleading by way of consequential amendment then the suit shall be liable to be dismissed.
21. In the case of Baldev Singh ( Supra) The Apex Court has held that inconsistent pleas can be raised by defendants in the written statement although the same may not be permissible in the case of plaint while laying down the said principle relied on the case of M/s Modi Spinning and Weaving Mills Co. Ltd. and another v. M/s Ladha Ram & Co. (1976) 4 SCC 320, wherein8 principle has been enunciated that inconsistent or alternative ples can be made in the written statement. Accordingly, the High Court and the Trial Court had gone wrong in holding that defendants/ appellants are not allowed to take inconsistent pleas in their defence.
22. In view of the abovesaid facts, no doubt the principle which emerged out that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable.
23. Such being the settled law, in the case of amendment of a written statement, the courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice would be far less in the former than in the latter case but while doing so, it should be kept in mind that no serious injustice or irreparable loss is cost to the other side on the ground that the prayer of amendment is not bona fide one.[see Baldev Singh & Ors. v. Manohar Singh (2006 (6) SCC 498, Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary (Dead) [1995 Supp (3) SCC 179)].
24. Needless to mention herein that in the case of Revajeetu Builders & Developers v. Narayanaswamy and sons and others (2009) 10 Supreme Court Cases 84 Hon'ble the Supreme Court while dealing with applications for amendment has held as under:-
On critically analysing both the English and Indian Cases, some basis principles emerges which ought to be taken into consideration while allowing or rejecting the aplication 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 6 Rule 17. These are only illustrative and not exhaustive.
The decision on an application made under Order 6 Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments.
25. In view of the above facts in nut shell while dealing with the matter in regard to allowing amendment application either in plaint or in written statement at any stage , the two conditions must be satisfied:-
(A) Whether amendment is necessary to decide real controversy The first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for the determination of the real question in controversy . If that condition is not satisfied , the amendment cannot be allowed. This is the basic test which should govern the courts' discretion in grant or refusal of the amendment.
(B) No prejudice or injustice to other party The other important conditions which should govern the discretion of the court is the potentiality or prejudice or injustice which is likely to be caused to the other side. Ordinarily, if the other side is compensated by costs then there is no injustice but in practice hardly any court grants actual costs to the opposite side. The Courts have very wipe discretion in the matter of amendment of pleadings but court's power must be exercised judiciously and with great care.
26. Now reverting to the facts of present case, it is not disputed between the parties that the contesting respondents filed a suit for arrears of rent and enactment on the ground that defendant/ petitioners defaulted in payment of rent and illegal subletting the property in question registered as SCC Suit no. 17 of 1992 (Sri Roop Kishore Mehrotra and others v. Amreek Singh and others), allowed vide judgment and decree dated 26.3.2007. Thereafter , petitioner/ tenant filed revision ( Revision No. 2 of 2007 ) . On 3.9.2009 arguments were heard by the revisional court thereafter on 25.9.2009 some of the plaintiffs sold some portion of the house in dispute.
27. Accordingly, on 6.9.2010 the petitioner filed an application for amendment by adding the names of plaintiffs i.e. Vimal Kishore, Kaushal Kishore, Prakash Chandra , Jagdish Chandra , Smt. Pratibha , Smt. Ranjana and Smt. Durga Rani who during the pend ency of revision, sold part of the premises in dispute under the tenancy of defendant, so suit filed by the plaintiffs is liable to be dismissed. The said amendment as sought by the petitioner was contested and opposed by the landlord /defendant and after hearing the same , the revisional court rejected vide order dated 7.12.2009.
28. In view of the above said fact, I find force in the arguments as advanced by Sri R.K. Sharma, learned counsel for the respondents that amendment which sought by the petitioner by way of subsequent event is not necessary to decide the real controversy between the parties as in the present case decree has been passed for eviction on the ground of illegal subletting by trial court under challenged in revision and amendment cannot either eclipsed or wipe out the said decree granted in favour of the landlord as such said subsequent event in my opinion has neither any bearing in dispute between the parties nor necessary to decide the controversy in issue by the revisional court and the suit on the said ground cannot fail .
29. In the case of Hukum Chand v. Om Chand and others (2001) 10 Supreme Court Cases 715 Hon'ble the Supreme Court has held as under:-
The Rule is an enabling one and permissive in nature. A full Bench of the Patna High Court has held in Mahanth Sukhdeo Das v. Kashi Prasad Tiwari AIR 1958 Pat, 630 that in spite of a devolution of interest having taken place during the pendency of the litigation , the same can continue. It is for the assignee to appear in the suit at any stage and defend himself with the leave of the court but he cannot seek to be brought on record as of right. The discretion vests in the Court. Though ordinarily the leave will not be refused , nevertheless the court would exercise its discretion in granting the leave on the facts and circumstances of a given case. The tenant having suffered a decree from the High Court, it , was for him to make an appropriate application and seek leave of the court for prosecuting appeal against the person in whom the right and title in the suit property has come to vest. It was also open to such transferee pendente lite to seek leave of the court for coming on record. The Full Bench has opined the Sukhdevo Das Case that such assignment or devolution of right during the pendency of the litigation did not arrest the progress of the litigation . We agree with the view taken by the Full Bench . In our opinion , the only exception is when the transfer of property forming the subject matter of the suit , pendente lite , results in wiping out the cause of action itself or deprives the transferee of the right to decree, such as where the cause of action was personal to the original plaintiff. Otherwise , the only result is that such transferee steps into the shoes of his predecessor-in-interest and remains bound by the result of the suit and would not , at a later stage, be permitted to raise the plea that he was not bound by the result of the litigation because he was not brought on record of the suit and impleaded as a party. The second contention of the learned counsel for the appellant also fails.
30. In the case of Ram Nibas Gagar ( dead) by LRS. v. Debojyoti Das and others (2003) 1 Supreme Court Cases ,472 the Hon'ble Supreme Court has held as under:-
The civil revision remained pending in the High Court form the year 1993to 22.7.1998. Special Leave Petition before this Court was filed on 8.9.1998 accompanied by an application seeking to invite the attention of this Court to additional facts by way of subsequent events. The relevant part of the application is extracted and reproduced hereunder:-
That during the pendency of the proceedings , the respondent landlords have inducted many new tenants in the rooms adjacent to the suit premises. Some tenants were inducted during the pendency of the first appeal for which an application was filed by the petitioner. However, the appellate court failed to take note of the additional facts, while disposing of the appeal . Even subsequent to disposal of the appeal by the appellate court, new tenants have been inducted by the respondent landlords. A sketch map of the suit premises alongwith the names of the tenant inducted and the period of tenancy is filed herewith and marked as Annexure P-2.
31. In the case of Gaya Prasad v. Praddep Srivastava (2001) 2 Supreme Court Cases 604, the Apex Court has held as under:-
We have no doubt that the crucial date for deciding as to the bona fides of the requirement of the landlord is the date of his application for eviction. The antecedent days may perhaps have utility for him to reach the said crucial date of consideration. If every subsequent development during the postpetition period is to be taken into account for judging the bona fides of the requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in our legislative slowprocess system subsists.
32. Accordingly, in view of the above said position the court should liberal while allowing amendment in written statements but the subsequent events should be of a such magnitude that if it is taken into consideration it would completely eclipsed the relief sought by petitioner and would wipe out cause of action thus the same is necessary to decide the controversy involved in the matter.
33. In the instant case SCC suit filed for arrears of rent and ejectment and for illegal subletting of the property in question so in case amendment as sought if allowed in written statement that some portion of the property in question has been sold out , neither wiped out nor eclipsed the relief as claimed by the respondents/ plaintiffs in the suit and also does not effect the real controversy involved between the parties i.e. arrears of rent and question of subletting already undergone by the petitioner and on the basis of which suit has been decreed in favour of the plaintiff/ respondent further the suit would not fail and relief claimed would not extinguished, so I do not find any illegality or infirmity in the impugned order dated 7.12.2009 passed by Additional District Judge Court no.5 Sitapur in Revision No.2 of 2007( Surjeet Singh and others v. Nand Kishore and others ) .
34. For the foregoing reasons, the present petition lacks merit and is dismissed.
35. No order as to costs.