S.P. Sehgal Vs. Vidya Kaul - Court Judgment

Excerpt:
1. civil procedure code, 1908 - order 6 rule 17--amendment of plaint--what circumstances to be allowed in--explained.;2. delhi rent control act, 1958 - sections 25(b) and 14(e)--when amendment of petition to be allowed--explained.;3. constitution of india - article 227--petition challenging order of rent controller allowing amendment under order 6 rule 17, c. p. c.--whether maintainable under article 227.;during the course of an action for ejectment under chapter 3a, section 25(b) read with section 14(1)(e) of the delhi rent control act, 1958, the additional rent controller allowed an amendment petition moved by the petitioner landlady. the tenant moved the high court under article 227 of the constitution of india challenging the order of the additional rent controller.;on behalf of the tenant-petitioner it was contended inter alias that;(i) amendments being asked for were already on record in the form of evidence of the landlady;;(ii) that amendments were factually incorrect and had no substance on merits;;(iii) amendments related to subsequent developments which could be taken note of by the court in appropriate cases.;dismissing the petition, the court;1. it is not necessary to look into the evidence for this purpose. but assuming such evidence has already come on the record, in that case there is all the more a necessity for making the application for such an amendment. it is settled principle of law that a person cannot be allowed at the trial to change his case or set up a case inconsistent with what he has alleged in the pleadings except by way of amendment under order 6 rule 17.;2. while considering whether an amendment should or should not be allowed the court ought not to go into the alleged falsity of the case in the amendment. so also it cannot be into, and give a finding on the merits of the amendment sought for without first allowing the amendment and framing an issue thereon and allowing both sides to adduce evidence.;3. it is no doubt true that in appropriate cases subsequent events can always be taken into consideration by the court but this does not mean that no amendment should be allowed. on the other hand lest the other party should be put to surprise and injustice it would not only be expedient in the interest of justice, but also appropriate for the party to apply for such amendment in the petition. the real test for allowing the amendment is, as already stated, that the amendment should be necessary for determining the real question in controversy and other party should not be put to injustice.;4. in view of the law laid down by the supreme court, since additional rent controller has exercised jurisdiction within the limits of the authority and framework of law and there is no defect in the exercise of his jurisdiction, no interference is called for under article 227 of the constitution of india. - - (5) for the purpose of allowing the amendments two conditions must be satisfied and they are :(i) that the amendment should be necessary for the purpose of determining the real question in controversy between the parties; to allow it would he to cause the defendant an injury which could not be compensated in costs by depriving him of a 'good defense to the claim. this fact was within her knowledge and she did not state this fact in her replication filed in april, 1979. there is hardly any substance in this submission as well. even if it is assumed that the respondent-landlady has been negligent or careless or through mistake has failed to state the above fact in her replication, she cannot be penalised for such lapse if the amendment is necessary for determining the real point in controversy.p.n. nag, j.(1) the petitioner-tenant by this petition under article 227 of the constitution of india has challenged the order of shri v. b. gupts. additional rent controller delhi dated 6th august. 1981 whereby he has allowed the amendment petition filed by the respondent-landlady for ejectment under chapter 3-a, section 25(b) read with section 14(1)(e) of the delhi rent control act, 1958 (hereinafter called 'the act'). (2) the facts giving rise to this petition are that the respondent-landlady filed a petition for eviction of the petitioner-tenant from the tenanted premises in house no. 7133, roop nagar, delhi on the ground that she required the premises bona fide for her residence and her family members depending upon her the family of the respondent-landlady comprises of two grown up unmarried daughters, one married daughter, three sons, two of whom are married and a servant and that the portion in occupation of the respondent-landlady in the said house was not sufficient to accommodate the whole family and that she had no other reasonable suitable accommodation in delhi. (3) the respondent-landlady completed her evidence on 20th january, 1981 and thereafter the case was fixed for the evidence of the petitioner-tenant. however, before that on 2nd april, 1981 she moved an application under order 6 rule 17 read with section 151 of the code of civil procedure for amendment of the petition alleging, inter alia, that after the institution of the suit there had been lot of changes in the circumstances inasmuch as the ground floor portion in the property in suit which was under the tenancy of one shri j. n. gupta was vacated by him on 27th march, 1979 and she has shifted to the ground floor. it was also stated that her son-in-law retired from indian aluminium company. calcutta and the said son-in-law along with his wife and other family members are to shift in delhi to live with her in her old age. it was also stated that her daughter is seeking admission in central education institute of delhi and would live with her and that the accommodation available with her was most inadequate and insufficient and with a view to explain the present position regarding accommodation available to her and the manner it was being used, she wanted to amend the petition. the amendment application hide by the respondent-landlady was, however, opposed by the petitioner-tenant: (4) by the impugned order dated 6th august, 1981 the learned additional rent controller allowed the amendment prayed for. (5) for the purpose of allowing the amendments two conditions must be satisfied and they are : (i) that the amendment should be necessary for the purpose of determining the real question in controversy between the parties; and (ii) that the amendment should not work injustice to the other side. in this connection reference is made to pirgonda hongonda patil v. kalgonda shidagonda patil and others : [1957]1scr595 wherein the supreme court has held as under : 'all amendments ought to be allowed which satisfy the two conditions (a) not working injustice to the other ?ide, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. it is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused: to allow it would he to cause the defendant an injury which could not be compensated in costs by depriving him of a 'good defense to the claim. the ultimate test thereforee still remains the same : can the amendment be allowed without injustice to the other side, or can it not ?'(6) there is no manner of doubt that in the present case the above-mentioned amendments sought to be incorporated in the eviction petition are additional facts/grounds which are necessary for determining whether or not the premises let by the respondent-landlady for residential purposes are required bona fide by her for occupation as residence for herself or for any member of her family dependent on her, if she is the owner thereof, or for any person for whose benefit the premises are held and that the respondent-landlady or such person has no other reasonably suitable residential accommodation. in other words, these additional facts/grounds are necessary for the purpose of determining the real question in controversy between the parties. the amendment can also be allowed without injustice to other side by awarding costs and the additional rent controller had allowed such an amendment subject to payment of rs. 29 as costs. the learned additional rent controller has correctly allowed the amendment and i do not find any illegality or infirmity in his order. (7) at the time of hearing shri jaitley, learned counsel for the petitioner-tenant, vehemently contended that the amendment is not necessary for determining the real question in controversy between the parties as whatever amendment is being asked for by the respondent-landlady is already on the record in the form of evidence led and concluded by her. this argument is wholly untenable in the eyes of law. it is not necessary to look into the evidence for this purpose. but assuming such evidence has already come on the record, in that case there is all the more a necessity for making the application for such an amendment. it is settled principle of law that a person cannot be allowed at the trial to change his case or set up a case inconsistent with what he has alleged in the pleadings except by way of amendment of the pleadings under order 6 rule 17. the ordinary rule of law is that evidence is to be given only on a plea properly raised and not in contradiction of the plea. in such a situation it is absolutely necessary for the respondent-landlady to amend the petition and, thereforee, the learned additional rent controller has correctly allowed such an amendment. (8) the next submission of shri jaitley was that the amendments sought by the respondent-landlady are factually incorrect and have no substance on merits and that further such amendments do not satisfy the ground of bona fide requirement as contemplated under section 14(1)(e) of the act. this contention is again wholly unacceptable as while considering whether an amendment should or should not be allowed the court ought not to go into the alleged falsity of the case in the amendment. so also it cannot go into. and give a finding on the merits of the amendment sought for without first allowing the amendment and framing an issue thereon and allowing both sides to adduce evidence. (9) it was further contended that the amendments sought to be incorporated are mostly subsequent developments which can always be taken note of by the court in appropriate cases and, thereforee, it is wholly unnecessary to amend the petition for determining the real point in controversy and as such the learned additional rent controller should not have allowed the amendment. it is no doubt true that. in appropriate cases such subsequent events can always be taken into consideration by the court but this does not mean that no amendment should be allowed by the court, if applied for by any party in such circumstances. on the other hand, lest the other party should be put to surprise and injustice it would not only be expedient in the interest of justice, but also appropriate for the party to apply for such amendment in die petition and if the amendment is called for in the facts and circumstances of the case that should be allowed by the court. the real test for allowing the amendment is, as already stated, that the amendment should be necessary for determining the real question in controversy and other party should not be put to injustice. thereforee, merely that subsequent developments can be taken into consideration by the court will not in any way stand in the way of the party seeking amendment or of the court allowing such an amendment. (10) in the last it was contended that the amendment sought for is not bona fide, that the evidence was closed by the respondent-landlady on 20th january, 1981 and thereafter she sled the petition for amendment, i.e., at a belated stage. further one shri j. n. gupta vacated the ground floor of the property in march, 1979 and she has shifted to the ground floor. this fact was within her knowledge and she did not state this fact in her replication filed in april, 1979. there is hardly any substance in this submission as well. the ground floor of the property was vacated by the tenant in march, 1979 and that this fact was not available to the respondent-landlady at the time of filing the eviction petition. although it appears that she has filed replication in april, 1979 and this fact was not stated by her in the replication through over-right or mistake. it is no doubt true that the replication is considered as part of the pleadings but the appropriate course for her was to amend the petition so as not to put other party to surprise and injustice. the petition for amendment also has been filed immediately after closing of the evidence on 20th january, 1981. the proposed amendment is also, in my opinion, not belated so as to work injustice to the petitioner-tenant and which cannot be compensated with costs. even if it is assumed that the respondent-landlady has been negligent or careless or through mistake has failed to state the above fact in her replication, she cannot be penalised for such lapse if the amendment is necessary for determining the real point in controversy. procedural law is intended to facilitate and not to obstruct the course of substantive justice. provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take place. thereforee, even if a party or its counsel is. inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. (11) no other point was urged by the learned counsel for the petitioner. (12) viewed from another angle, the question arises for consideration is whether or not petition under article 227 of the constitution of india is maintainable in the facts and circumstances of the case. in this connection mohd. yunus v. mohd. mustaqim & others : [1984]1scr211 may be referred to. in that case the supreme court has pointed out the limitations for the exercise of jurisdiction of the high court under article 227 of the constitution. the relevant portion is extracted below : 7.the supervisory jurisdiction conferred on the high courts under article 227 of the constitution is limited 'to seeing that an inferior court or tribunal functions within the limits of its authority,' and not to correct an error apparent on the face of the record, much less an error of law.... ......... in exercising the supervisory power under art. 227, the high court does not act as an appellate court or tribunal. it will not review or reweigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision.'in view of the law laid down by the supreme court, since additional rent controller has exercised jurisdiction within the limits of the authority and within the framework of law and there is no defect in the exercise of his jurisdiction, no interference is called for under article 227 of the constitution of india and the petition even otherwise, thereforee, is not maintainable. (13) in view of the above this petition fails and k dismissed with costs. the stay order granted on 18th january, 1983 stands vacated.