Dinesh Kumar Pathak and Another vs Sri Trailokya Mishra

Sanju Panda, J.—Since these two writ applications arise out of C.S. No. 154 of 2009, both were heard together & are being disposed of by this common Judgment.

In both the writ applications, challenge has been made to the Order Dated 24.4.2009 passed by the Learned Civil Judge (Junior Division), Bhubaneswar in Interim Application Nos. 197 & 199 of 2009 allowing applications filed by the Petitioner under Order 6, Rule 17, CPC for amendment.

To appreciate the contentions of the parties, the following facts of the case are necessary to be stated:

The Opp. Party as Plaintiff filed C.S. No. 154 of 2009 before the Learned Civil Judge (Junior Division), Bhubaneswar for damage of Rs. 3,800 along with future damage; mandatory injunction by way of a direction to the Defendants to remove the iron flat, clamps & locks put on the entrance door of the Plaintiffs tenanted premises at Plot No. 101/7, Jan Path, Unit-Ill, Bhubaneswar & rewrite the wall sign boards of the Plaintiffs company; permanent injunction against the Defendants to evict the Plaintiff forcibly or illegally without taking recourse to the legal process; a decree in favour of the Plaintiff with cost of the suit & other relief as deemed just & proper. Along with the plaint, he filed I.A. No. 197 of 2009 under Order 39, Rules 1 & 2 read with Section 151, CPC for mandatory injunction. He also filed I.A. No. 199 of 2009 for ad interim mandatory injunction to restore the position of the tenanted premises located at Plot No. 101/7 as on 4.4.2009 by removing the iron flat & the locks put on the entrance door. In the said application, he specifically averred that the disputed premises was let out to him with effect from 1.3.1972 at a rent of Rs. 500 per month which was subsequently enhanced from time to time & lastly fixed at Rs. 2,000 per month. The rent was collected regularly till 31.3.2005. Thereafter, since they refused to accept the rent, the Plaintiff paid the same by check & it was regularly paid till filing of the suit.

While the matter stood thus, on 29.3.2009 the Defendants entered into the premises with seven to eight persons shouting in filthy & intimidating language, demanded differential rate at par with other neighbouring tenants from February, 2006, misbehaved the Plaintiff & his family members & threatened him to evict forcibly from the tenanted premises. The said matter was informed by the Plaintiff before the nearest police station. On 6.4.2009 at about 9.00 AM, when the staff of the Plaintiff went to open their office, found that one iron flat was fixed with clamp over the entrance door & two extra locks were put thereon to obstruct their entry to their office. On 8.4.2009, the Plaintiff came to know that the sign-boards of his Companies were covered by paintings by some one in order to delete the name of the Company. Further, he averred that he kept all books of accounts, ledgers, documents & articles of the company inside the tenanted premises. Due to blocking of the entrance, he & his staff were unable to enter inside the premises & work therein & prepare the statutory returns of the Company which were mandatory to be submitted before the authorities of the companies under the Companies Act. Though the Plaintiff was a bonafide tenant & paying rent till the filing of the suit, his tenancy was yet to be determined by legal notice. The Defendants had not entered into the tenanted premises by legal process. The Plaintiff was running his office in the said premises upto 4th of April, 2009. All official documents & records including the furniture & equipments were lying inside the tenanted premises. Therefore, mandatory injunction should be granted.

The order sheet of the Court below reveals that 13.4.2009 the Court issued notice to the Defendants fixing the date on 16.4.2009 to show cause. The Defendants appeared on 16.4.2009 through an Advocate & filed an application for time to file their objection. Time was allowed. On the said date, the Plaintiff filed applications under Order 6, Rule 17, CPC to amend the interim applications, i.e., I.A. Nos. 197 & 199 of 2009 & the matter was posted to 18.4.2009 on which date the Defendants filed an application for time to file their objection to the petition filed under Order 6, Rule 17, CPC. Thereafter, the case was posted to 21.4.2009 for hearing. On the said date, the Defendants filed their objection to the amendment petition & the matter was heard on 24.4.2009. After hearing both the parties, the Trial Court allowed both the applications for amendment by a common order as the Plaintiff wanted to substitute the word "position" in place of "possession" without seeking any addition or alteration to the rest part of the pleadings in the interim application & he explained all the facts & circumstances how the sporadic act of putting of an iron flat with locks across the door may not constitute an act of dispossession so as to affect the very fabric of the suit & thereby prevent the Plaintiff from correcting the mistake which according to him, had crept into the petition inadvertently. The Court below directed to carry out the amendments as the same was necessary to give clear picture of the facts & the entire pleadings did not constitute an act of complete dispossession so as to allow the Defendant to contend that they had taken over its possession. Therefore, the word "possession" needed to be construed as "position" as the very purpose of the prayer was for removal of the above obstructions.

Learned Counsel for the Petitioner submitted that the Plaintiff admitted his dispossession & if the amendment was allowed, it would have amounted to withdrawal of the admission. He has already stated in the plaint that he was in possession of the disputed premises. Law is well settled that an admission of the parties shall not be taken away by way of amendment. The same amounts to displace the Defendants & deprive them from taking advantage of the Plaintiffs admission. Therefore, the impugned order is liable to be interfered with by this Court.

Learned Counsel for the Opp. Parties submitted that the Plaintiff had clearly explained the circumstances under which he moved the application for amendment & by way of the amendment he prayed for substitution of the word "possession" which was inadvertently written in the interim application. In place of the said word, he wanted to substitute the word "position" only. He did not want to amend any other pleadings. Law is well settled that an admission in the pleadings can be explained & the same can also be withdrawn if the person seeking such amendment explained reasons & explained the mistake which has been inadvertently made due to the pleadings drafted by the Counsel. He relied on the decisions of this Court reported in Hundari Bewa Vs. Keluni Dei and Others, & Gobinda Sahoo Vs. Ram Chandra Nanda and Another, wherein it was held that whether the Court is satisfied that the admission was made by inadvertence or erroneously & there was no mala fide on the part of the applicant, it would be denial of justice not to permit the party to withdraw the admission or correct the mistake. No hard & fast rule can be laid down. The Courts exist for deciding the rights of parties & not to punish them for mistakes they make in the conduct of their cases, & they do not exist for the sake of discipline, but for the sake of deciding matters in controversy, permission to correct an error or mistake should be granted unless it be fraudulent or intended to overreach & where such withdrawal does not cause injustice to the other side, * or such injury which may not be compensated by costs. The rules of procedure are intended to sub-serve justice on the same point.

He further relied on the decisions of the Apex Court reported in Panchdeo Narain Srivastava Vs. Km. Jyoti Sahay and Another, & M/s. Estralla Rubber Vs. Dass Estate (Pvt.) Ltd., . In Estralla Rubber''s case (supra), it was held that even where there is an indirect admission in the original pleading, it is open to the Defendant to explain the same. In an eviction suit where Defendant concern had denied the relationship of landlord & tenant & later sought permission to amend its pleading & add the averment that Plaintiff-Respondent was not a landlord but only an occupier by permission & also averments based on revenue record, held, on facts, proposed amendments should have been allowed.

In view of the above position of law & the fact that the Plaintiff-Opp. Party only wanted substitution of the word "possession" & explained � that due to inadvertence, such mistake had crept into the pleadings of the interim application. He did not want to amend his pleadings in the plaint or other pleadings in the interim application. A pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage & to read it out of the context, in isolation. Although it is the substance & not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words, or change of its apparent grammatical sense. The intention of the party concerned is to be gathered, primarily, from the tenor & terms of his pleading taken as a whole.

Therefore, on a reading of the whole pleadings, it is apparent that in the interim application the Plaintiff intended to pray for restoration of "position" & not "possession" of the tenanted premises as it was before filing of the application. Therefore, he wanted to substitute the word "position" in place of "possession" & the Trial Court rightly allowed the same.

The power under Article 227 of the Constitution of India can be exercised to interfere with the orders of the lower Courts only in cases of serious dereliction of duty & flagrant violation of fundamental principles of law or injustice, where, in the absence of intervention by the High Court, grave injustice would remain unchecked & uncorrected.

Since the Trial Court has rightly decided the matter, this Court is not inclined to interfere with the impugned order. Accordingly, both the writ applications are dismissed. However, the Trial Court is directed to proceed with the suit immediately & hear all the interim applications as early as possible. LCR be returned to the Court below immediately.