Dinesh Chaudhri vs IXth A.D.J., Kanpur Nagar and others

Rakesh Tiwari, J.—Heard counsel for the parties and perused the record.

The landlord respondent moved an application under section 21(1)(b) of U.P. Act No. 13 of 1972 which was registered as Rent Case No. 78 of 2005. The tenant petitioner contested the case by filing written statement. An application for amending the release application moved by the landlord respondent was allowed.

The prescribed authority by its judgment and order dated 11.8.2008, allowed the release application. Aggrieved by the order, the tenant petitioner preferred Rent Appeal No. 100 of 2008.

During pendency of the appeal, the petitioner moved an application dated 7.1.2011 for permission to file additional written statement on the ground that petitioner was not satisfied with the working of his earlier counsel, hence he changed the counsel in appeal and engaged a new counsel who advised him that prescribed authority had not granted time to the petitioner to file additional written statement which is necessary to be filed in the facts and circumstances of the case. Objection to the aforesaid application was filed by the landlord respondent. The appellate court by its order dated 29.1.2011 rejected the aforesaid application holding that application has been moved to delay decision in the appeal and fixed 18.1.2011 for arguments. Just after ten days, the tenant petitioner moved another application dated 8.2.2011 for amendment in the written statement which was also objected to by the landlord.

The appellate court after hearing the parties by its order dated 14.3.2011 has rejected the application aforesaid holding that no sufficient cause has been shown for not seeking the amendment before the prescribed authority itself and that proposed amendment prayed for at the belated stage in appeal at the time of arguments, would result into de novo trial.

The tenant petitioner has challenged the aforesaid orders of the appellate court dated 29.1.2011 and 14.3.2011 in the present petition.

Counsel for the petitioner submits that the appellate court has rejected his applications on two grounds, firstly that he want to delay decision in the appeal and secondly that in case the application is allowed, de novo proceedings could have started. Contention of the counsel for petitioner is that aforesaid findings cannot preclude the petitioner from bringing on record the facts as averred in the amendment application for the reason that he has no intention to delay the matter and this Court may direct the appellate court to decide the appeal within a time bound frame. So far as the question of de novo proceedings is concerned, he submits at the bar that petitioner has not desired to produce any oral or documentary evidence in this regard at this stage. He has relied upon paragraph nos. 19 and 20 of the decision of the Apex Court rendered in Usha Balashaheb Swami and others Vs. Kiran Appaso Swami and others ( 2007(2) A.R.C.402), which reads thus :

"19. It is well settled by various decisions of this Court as well as the those by High Courts that the Courts should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bonafide one. In this connection, the observation of the Privy Council in try case of Ma ShweMya V. Maung Mo Hnaung, AIR 1922 P.C. 249 may be taken note of. The Privy Council observed:

" All rules of Courts are nothing but provisions intended to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate, so that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another nor to change by means of amendment, the subject matter of the suit."

It is equally well settled principle that a prayer for amendment of the plaint and a pray for amendment of the written statement stand on different footings. The general principal that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendment to plaint. It has no counter part in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defender or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substitution a new cause of action in the plaint may be objectionable."

He has lastly relied upon Order VI Rule 17, C.P.C. and has argued that court below ought to have adopt a liberal view and allowed the amendment application by awarding cost and has also submitted that no opportunity had been granted by the court below to the counsel for filing additional written statement to the amendment application.

Per contra, learned counsel appearing for landlord respondent submits that petitioner had moved the application for amendment at the appellate stage and that too when arguments are to be heard in the appeal. He further submits that copy of annexure no. 5 to the writ petition i.e. copy of the impugned order dated 29.1.2011 is not a correct copy and he has produced the certified copy of annexure no. 6 in this regard.

After hearing the counsel for the parties, it may be stated here that Order 6 Rule 17 has been amended providing 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 commencement of trial''.

Admittedly, in the present case application under section 21(1) (b) of U.P. Act no. 13 of 1972 was filed in the year 2005 and the appeal was preferred in the year 2008. The petitioner has nowhere stated in his application that he could not have filed the proposed amendment even though he had been persuing the case with due diligence or that the facts stated in the application were neither in his knowledge or were available. Relevant extract of the order of the appellate court in this regard is as under :

As regards paragraph no. 19 and 20 of the aforesaid decision relied upon by the counsel for petitioner is concerned, suffice it to say that appellate court has assigned cogent reasons for not allowing the amendment application as delay defeats justice.

Submission of the counsel for petitioner that petitioner had engaged a new counsel who informed him that amendment is required, cannot be a ground for the amendment as prayed for to show that he had been persuing the matter with due diligence and that too at the stage of final arguments in the appeal. Therefore, the appellate court has rightly come to the conclusion that delay defeats justice and if amendment is allowed, de novo trial would have to be conducted. The aforesaid statement made by the counsel for petitioner is only a statement of fact. Delay in justice cannot be compensated in terms of the cost as this would tentamount to defeat of justice.

It is apparent from the record that at the stage when the appeal was to be finally heard, initially an application for permission to file additional written statement was filed on behalf of the petitioner which was rejected by the appellate court vide impugned order dated 29.1.2011. Immediately after ten days of rejection of the aforesaid application, another application was moved by the petitioner praying for amendment in the written statement. In the facts and circumstances, the appellate court has rightly come to the conclusion that appellant petitioner intends to prolong decision in the appeal which is at the stage of final arguments.

It may also be stated that neither order sheet of the courts below have been filed nor it has been averred in the petition, that when amendment application was filed by the landlord before the trial court, time was prayed for on behalf of the petitioner but was not granted. If a counsel in noble profession of law is unable to look after the interest of his client or does not avail the opportunity by exercising his right seeking time to file additional written statement in the amendment application, fault cannot be said to lie with the Court.

For all the reasons stated above, no case for interference in exercise of extra ordinary powers under Art. 226 of the Constitution is made out. The petition is accordingly dismissed. In the facts and circumstances of the case, the appellate court is directed to decide the appeal expeditiously within a period of one month from the date of presentation of a certified copy of this order.