Hari Chand Aggarwal (Deceased) Thr Lrs vs M/S Gobind Pershad Jagdish Parshad & Ors

Prateek Jalan, J

The present petition under Article 227 of the Constitution of India has been filed against an order dated 18.04.2019 passed by the learned District

and Sessions Judge, New Delhi in RCT No. 147/2016 and order dated 11.08.2015 passed by the Rent Controller in Eviction Petition No. 11/2009. By

the order dated 11.08.2015, the Trial Court dismissed the application of the petitioner herein under Order VI Rule 17 of the Code of Civil Procedure,

1908 (hereinafter referred to as “the CPCâ€) for amendment of the written statement filed by him. By the impugned order dated 18.04.2019, the

Appellate Court has dismissed the petitioner’s appeal against the order dated 11.08.2015.

The eviction proceedings were filed by the respondent no.1 herein in the year 2003, originally against the father of the petitioner herein. The original

respondent having died in 2012, his legal heirs including the petitioner were brought on record. In October, 2014, the petitioner filed an application

under Order VI Rule 17 of the CPC for amendment of the written statement. By this time, evidence had already commenced in the eviction

proceedings.

The contention raised by the petitioner in the application was that he had received a notice from respondent no.5 in the eviction proceedings (Om

Prakash Aggarwal, who is also impleaded in this petition as respondent no.5) under Order XII Rule 8 of the CPC in response to which certain

documents had been supplied and placed on record by the learned counsel for the petitioner herein. Those documents were a notice dated 20.05.1952

under Section 22(2) and 38 of the Indian Income Tax Act, 1922 addressed to M/s Aggarwal Restaurants and an assessment order dated 28.08.1952 in

respect of the said entity. It was contended that the said documents were neither within the knowledge nor within the possession of the petitioner

herein and had recently come to his knowledge. The petitioner sought an amendment of the written statement based on these documents.

In the original written statement, the respondent no.2 had averred as follows:-

That the para No.5 of the Petition is correct to the extent that the Respondent No. 2 is doing the business in the suit premises. However, it is

incorrect that the Respondent Nos. 1 to 4 has unauthorisedly and illegally parted with the possession of the portion shown in red colour in site plan to

the Respondent No. 5. It is submitted that the Respondent No.5 and Late Shri Raghubir Singh were real brothers and the suit premises was being

used jointly by both the brothers as they were living together in the joint family. Since the Respondent No. 5 was doing business alongwith his brother

late Shri Raghubir Singh Aggarwal, hence there is no question of subletting the part of the premises to Respondent No. 5. After the death of late

Raghubir Singh, the Respondent No. 5 has continued to do his business in the premises in the question. It is further submitted that the Respondent No.

5 was doing business alongwith late Shri Raghubir Singh Aggarwal since the date of letting. It is absolutely wrong that the Petitioner got knowledge of

this fact only in the year 2002. It is submitted that the Petitioner/Landlord had full knowledge right from the commencement of the tenancy of late Shri

Raghubir Singh Aggarwal that the Respondent No. 5 is also doing business alongwith Late Raghubir Singh in the suit premises. It is also wrong that

the Respondent No. 5 was paying any rent separately to late Shri Raghubir Singh. It is however absolutely incorrect and wrong that a portion of the

suit premises was sublet to Respondent No. 5...

[Emphasis Supplied]

The petitioner sought an amendment on the basis that certain facts had been omitted from the written statement and referred to it as “act of

omission and also due to inadvertence and oversightâ€. On this ground, the petitioner sought addition of the following paragraph in the written

statement after the paragraph extracted above:-

“…It is submitted that a notice dated May 20, 1952 under sections 22 (2) and 38 of the Indian Income Tax Act, 1922 was received by Shri

Raghubir Singh C/o M/s. Aggarwal Restaurant. Mr. Raghubir Singh attended the hearing before the Income Tax Officer through his Authorised

Representative and thereafter an Assessment Order dated August 28, 1952 was passed by the Income Tax Department in respect of M/s. Aggarwal

Restaurant H-Block, Connaught Place, New Delhi. During the course of the hearing, Mr. Raghubir Singh through his Authorised Representative

brought to the notice of the Income Tax Officer that the Parchuna shop was handed over by Mr. Raghubir Singh to his brother Shri Om Prakash

(Respondent No.5) much prior to accounting period i.e. March 1952. Since then, Shri Om Prakash (Respondent No. 5) has been carrying out

Parchuna/Karana/Baniya/Provision store separately and independently from H-21. It was further mentioned in the said order that the Respondent

No.5 was separate from Shri Raghubir Singh. The said contention of Shri Raghubir Singh was considered by the Income Tax Officer and the offer

given by Shri Raghubir Singh to considered his income for the assessment year 1952-1953 as Rs. 6,600/- (Rupees Six Thousand Six Hundred Only)

was accepted by the Income Tax Officer and appropriate order was passed in this regard. Since then, Raghubir Singh and Om Prakash were

assessed separately in respect of their respective business which they were carrying out from their respective shops.â€​

[Emphasis Supplied]

The petitioner reiterated that these facts were left out in the original written statement due to a bona fide mistake as he was not able to lay his hands

on the concerned documents.

The Trial Court did not accept the petitioner’s application, noting that the matter was already at the stage of cross-examination of the

petitioner’s witnesses and that the documents sought to be placed on record were not referred to in the written statement filed by the petitioner

herein. The Trial Court also recorded that the petitioner had not specified the date or manner in which the orders came into his possession.

The matter was carried to the Rent Control Tribunal in appeal and the Appellate Court has also rejected the appeal with reference, inter alia, to the

proviso to Order VI Rule 17 of the CPC and to the judgment of the Supreme Court inR evajeetu Builders and Developers vs. Narayanswamy & Sons

(2009) 10 SCC 84. The Appellate Court has held that the proposed amendment would be tantamount to permitting the petitioner to substitute an

entirely new or contradictory plea, and that the facts mentioned in the application do not demonstrate an exercise of due diligence justifying an

amendment of pleadings after commencement of trial in terms of the proviso to Order VI Rule 17 of the CPC.

Having heard learned counsel for the petitioner, I do not find any ground to interfere with the concurrent judgments of the Trial Court and the

Appellate Court in this petition under Article 227 of the Constitution. Both the Courts have correctly found that the case pleaded in the original written

statement was that the Late Raghubir Singh (the grandfather of the petitioner) and the respondent no.5 were living in a joint family and conducting a

joint business from the suit premises. To the contrary, the amendment sought to be incorporated indicated that the suit premises was handed over by

the Late Raghubir Singh to his brother (the respondent no.5) much prior to March, 1952. To this extent, the proposed amendment is contrary or

inconsistent with the stand taken by the petitioner in the written statement.

Further, the discussion of the Appellate Court with regard to the effect of the proviso to Order VI Rule 17 of the CPC is also unexceptionable.

Order VI Rule 17 of the CPC, as amended in 2002, provides as follows:-

“17. Amendment of pleadings.-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.â€​

The contents of the amendment application in so far as it seeks to explain the delay in seeking amendment are as follows:-

“9. It appears that act of omission and also due to inadvertence and oversight, Respondent No. 2 has not mentioned the facts as stated in

aforegoing para 8 of the Application and the same are required to be incorporated in the Written Statement.

xxxx xxxx xxxx

It is submitted that the aforementioned facts were left in the original Written Statement due to bonafide mistake as Respondent No.2 was not able

to lay his hands on the documents details of which are given in para 5 of the aforegoing Application.â€​

The requirement of the proviso to Order VI Rule 17 of the CPC is one of “due diligenceâ€. The aforesaid contents of the application do not

disclose diligence on the part of the petitioner but in fact refer expressly to his “inadvertence and oversightâ€. To permit an amendment after the

commencement of trial on the basis of an application of this nature would be directly contrary to and inconsistent with the requirements of the proviso.

The approach of the Trial Court and the Appellate Court are, in my view, consistent with the judgments of the Supreme Court on this aspect

including the principles laid down in Revajeetu Builders and Developers (supra) cited by the Appellate Court and the recent judgment of the Supreme

Court in M. Revanna vs. Anjanamma (2019) 4 SCC 332.

Paragraph 7 of the judgment in M. Revanna (supra) reads as follows:

“7. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the

suit. The proviso to Order 6 Rule 17 CPC virtually prevents an application for amendment of pleadings from being 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 the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the

person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been

sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally

amendments are allowed in the pleadings to avoid multiplicity of litigation, the court needs to take into consideration whether the application for

amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in

terms of money.â€​

Learned counsel for the petitioner further submitted that the documents in question have in fact been taken on record by the Trial Court and also

that the stand taken in the written statement of other respondents are consistent with the amendment which the petitioner sought. It is made clear that

the orders passed on the petitioner’s application for amendment of the written statement, including this order, do not seek to alter the position

regarding any document which may otherwise have been taken on record by the Trial Court or the pleadings of any other party. These observations

are confined to the question of whether the petitioner herein ought to be permitted to amend his written statement.

For the reasons aforesaid, the present petition is dismissed.