Basant Ballabh Joshi vs Rajesh Chandra Balutia

Umesh Chandra Dhyani, J.

By means of present Civil Revision, the revisionist seeks to set aside the judgment and order dated 09.09.2014 passed by the Additional District Judge-II, Haldwani in SCC Suit No. 14/2009.

An application under Order 6 Rule 17 C.P.C. for amendment in the written statement was filed by the defendant (revisionist herein), which was rejected by the Additional District Judge-II, Haldwani, vide order dated 09.09.2014.

The plaintiff filed a suit for recovery of arrears of rent and ejectment. The defendant wanted to incorporate certain amendments in his written statement, which was not permitted by the court below. It will be useful to incorporate the contents of the application under Order 6 Rule 17 CPC hereinbelow for convenience:

"3. That in the interest of justice the defendant may kindly be permitted to amend his W.S. in the following manner:

That in para number 3 of the W.S. in last line after the word ''notice'' the following may kindly be permitted to be written:

Further, it is to be submitted that it is apparent from the contents of the notice dated 23.03.2009 that the plaintiff has not demanded or claimed any rent through this notice from the defendant so the notice i.e. the basis of the suit is itself vague and it will be deemed in the law that there is no notice U/s. 106 T.P. Act to the defendant before the filing of the present suit.

That from the contents of the plaint, it is also apparent that the plaintiff has also demanded the rent after the alleged termination of tenancy of the defendant from the premises in suit so it will be deemed in the eye of law that by way of this act of the plaintiff the alleged notice dated 23.03.2009 has been waived hence the suit of the plaint is not maintainable in absence of legal notice.

That it is not out of reference to mention here that no specific date of service of notice has been mentioned in the plaint and in absence of specific date of service of notice the calculation of date of termination of tenancy cannot be calculated and the suit cannot be filed on the presumptry date of termination so the suit of the plaintiff is not maintainable in absence of the specific proof of specific date of termination of tenancy on the basis of presumption.

That in the same manner in last line of para number 4 of the W.S. after the word ''tenancy'' the following may kindly be permitted to be written:

Even the plaintiff has not mentioned in his notice dated 23.03.2009 that after the termination of the tenancy of the defendant the possession of the defendant over the suit property will be unauthorized which clearly indicates that the intention of the plaintiff was never been to terminate the tenancy of the defendant.

That it is not out of reference to mention here that the plaintiff has not demanded any rent through the notice dated 23.03.2009."

If we look at the written statement, which was filed on behalf of the defendant, we can safely assume that the desired facts have already been averred in the said written statement, although in different form and may not be happily worded. In other words, most of the facts, which the defendant seeks to incorporate by way of amendment in the written statement, are already there, He cannot, therefore, say that such pleas were not taken up by him in his written statement. The amendments sought for by the defendant (revisionist herein) are more or less clarificatory in nature and, therefore, the defendant-revisionist cannot be given that luxury to state the facts in the manner and at the stage he likes. There is another strange aspect of such move of incorporating amendment in the written statement. It is an admitted fact that the application under Order 6 Rule 17 C.P.C. was moved by the defendant at the time of final argument of SCC suit No. 14/2009. It will be useful to reproduce Order 6 Rule 17 C.P.C. hereinbelow for convenience:

"17. Amendment of pleadings.--The Court may at any stage of the proceedings allow either party to alter or amend his pleading 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 question 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 inspite of due diligence, the party could not have raised the matter before the commencement of trial."

Although, the stage is not prescribed for incorporating amendment in the pleadings, but the proviso to Order 6 Rule 17 C.P.C. says that no application for amendment shall be allowed after the trial has commenced. The application of the defendant could have been allowed even after the trial has commenced, but no explanation has been offered to show that ''inspite of due diligence the party could not have raised the matter before the commencement of trial.'' The amendments sought for by the defendant-revisionist were in the form of clarification only, in respect of which he has already stated in the written statement although the same may not be happily drafted. So, it cannot be gathered that the party or his counsel could not have raised the matter before the commencement of trial. The plaintiff or his witnesses were cross-examined by the defendant-revisionist. Likewise, the witnesses of the defendant-revisionist were also cross-examined by the other side. Had those amendments essential to the just decision of the case, it must have struck to the mind of learned counsel for the defendant-revisionist before the court below that such and such elements were missing in the written statement. Order 6 Rule 17 C.P.C. cannot be used to fill up the lacuna at such belated stage and contrary to statutory scheme, although the Courts are usually liberal in permitting amendments in the pleadings. In other words, the court cannot come to the conclusion that inspite of due diligence, the defendant could not have raised the matter before the commencement of trial.

For the reasons stated hereinabove, it cannot be said that the impugned judgment and order is illegal. It cannot be said that the order impugned suffers from any perversity or illegality or infirmity.

No interference is called for in the impugned judgment and order. The Civil Revision, therefore, fails and is dismissed.

It may not be construed to mean that this court has discarded all the pleas which were sought to be incorporated by the defendant by way of amendment in written statement, for as this Court has already mentioned above that those pleas have already been taken by the defendant in written statement, although in different form, which might not be happily drafted to the liking of learned counsel who was subsequently engaged in the case.