Harinder Pal Singh vs Kuldeep Singh and Others

Swatanter Kumar, J.—This revision is directed against the order dated 25.5.1999 passed by the learned Additional Civil Judge (Senior Division), Kharar.

The plaintiff Kuldeep Singh had filed a suit for possession by way of ejectment from the premises in dispute against the petitioner herein. It was stated that the defendant No. 1 in the suit was in arrear of rent/damage to the extent of Rs. 16,500/- and had sub let the premises in question. The suit was contested by the defendant, who took objections on merits. It was pleaded that there was no valid and proper notice terminating the tenancy. It was also pleaded that the suit was bad for non-joinder of necessary parties. On the pleadings of the parties, issues were framed, following of which are relevant for this petition:-

"1. Whether the tenancy was created in favour of defendant No. 1 and validly terminated vide notice dated 13.7.1994 as alleged? OPD.

Whether the suit is bad for non-joinder of the necessary parties? OPD.

Whether the suit in the present form is not maintainable? OPD."

The parties, in fact, even led the evidence in support of their respective cases. However, an application for amendment of the plaint was filed by the plaintiff-respondent No.1 herein praying that defendant No.2 is a partnership concern and Ms. Manjeet Kaur is one of the partners. With an intention to avoid any technical defect and frustration of the decree even if the plaintiff succeeds, it had become necessary to amend the plaint. This application for amendment was contested by the defendant and the learned trial Court, vide its order dated 25.5.1999, allowed the said application subject to payment of Rs. 300/- as costs. This order is impugned in the present revision petition.

The contention raised on behalf of the petitioner herein is that the impugned order suffers from an error of jurisdiction, as it falls beyond the scope of the settled canons controlling the provisions of Order 6 Rule 17 of the Code of Civil Procedure. Learned counsel appearing for the petitioner relied upon Jagmal Singh v. Smt. Mehma Devi and Ors.(1999)122 P.L.R. 756, K. Raheja Constructions Ltd. Vs. Alliance Ministries and others, and T.L. Muddukrishanan and another Vs. Smt. Lalitha Ramchandra Rao, to contend that after such a long delay and with an intention to fill up the lacuna, the plaintiff cannot be allowed to amend the plaint. On the other hand, learned counsel for the respondents contended, while relying upon Jai Jai Ram Manohar Lal Vs. National Building Material Supply Gurgaon, and Sucha Singh and Anr. v. Charan Singh and Ors. (1998)118 P.L.R. 347, that except some delay in filing the application, the application was fully justified and the learned trial Court has rightly allowed the application for amendment of the plaint.

The controversies with regard to the merits whether there was valid and proper termination of tenancy and other matters would have to be decided and determined in the main suit itself. As far as the Court considering the application under Order 6 Rule 17 of the Code is concerned, it has to see whether the amendment is necessary and proper for complete adjudication of the rights and obligations of the parties. The law relating to amendment has certainly received liberal construction in the recent past. If the amendment is necessary for proper adjudication and the application is not malafide, then mere delay in filing such application may not result in dismissal of the same. Certainly the plaintiff ought to have incorporated these facts right at the initial stage or immediately after the filing of the written statement, because it was the case of the respondent No.1 plaintiff himself that the defendant No.2 is a partnership concern. Defendant No.2 as a firm has been added in the array of the parties. The other partner has also been impleaded as defendant No.1. However, with an intention to avoid any technical defect and to have complete determination of the proceedings, to my mind, the amendment was necessary. Moreso, the amendment was based on the objection taken by the petitioner-defendant No.1 himself that the defendant No.2 was partnership concern and not a proprietorship concern, as stated.

One of the basic ingredients which the Court has to consider is whether by allowing an amendment the right which came to be vested in the non-applicant is being taken away or any serious prejudice is being caused to the defendant. None of these two conditions even remotely are satisfied in the present case. Learned counsel for the petitioner has not been able to show as to what prejudice is being caused to the petitioner except the delay or commencement of the evidence to a limited extent again. The facts and circumstances of this case are such that I am not able to see any error of jurisdiction in the impugned order passed by the learned trial Court. Learned trial Court has exercised its judicial jurisdiction in consonance with the settled principles of law. Only additional evidence, that too on the objection taken by the defendant, is being sought to be introduced by way of amendment. Relief remains to be the same. Learned counsel for the petitioner further contended that there is a notification dated 9.2.1994, under which the Rent Restriction Act is not applicable to the area in question. At this stage, this court is not concerned with this plea. Parties are at liberty to raise such plea before the learned trial Court.

Certainly there is delay on the part of the plaintiff-applicant in filing the present application. The delay is not of the kind which would require this court to interfere with the Impugned order in exercise of its revisional jurisdiction. It will be in the interest of justice to interfere with the quantum of costs imposed by the learned trial Court. The learned trial Court has imposed the costs of Rs. 300/-which is hereby enhanced to Rs. 1,500/-. Except to this modification, the revision petition is accordingly disposed of.

In view of the above observations, this revision petition is disposed of.