Harishankar Khandelwal vs Ramesh Rawat and Others

Sheel Nagu, J.—This petition under Article 227 of the Constitution of India assails the interlocutory order dated 12/1/2015 by which two applications dated 21.11.2014 and the other dated 3.12.2014 both under Order 6 Rule 17 CPC by the defendant to carry out amendment in his written statement, have been rejected.

Learned counsel for the rival parties are heard on the question of admission.

The facts giving rise to the instant petition qua application dated 21.11.2014 are that in a suit for eviction of shop on the ground of bona fide need of unemployed son, the plaintiff''s witness Mohammad Bakhsh inter alia stated in para 13 that Raju the son of the plaintiff Ramesh is employed and working in the Masjid shop and the son of the plaintiff who is named Rajkumar in the plaint is also known as Raju. As regards the application under Order 6 Rule 17 CPC dated 3.12.2014 is concerned, it is seen that the said amendment sought to incorporate certain additional pleadings in the written statement based upon subsequent event which took place in December, 2014 that the plaintiff offered certain sum of money to the defendant tenant for vacating the suit shop in question till 31.12.2015. This application dated 3.12.2014 has also been dismissed by the trial court on the ground that the amendment sought in the application dated 3.12.2014 had been denied by the plaintiff landlord and by holding the said application to be an excuse for delaying the trial.

In the above said factual background based upon the statement of said witness the tenant defendant filed an application under Order 6 Rule 17 CPC for amendment in his written statement to incorporate pleadings to the extent that the said statement of witness demonstrates that the son of the plaintiff landlord is employed and, therefore, the need shown by the landlord for seeking eviction of the shop does not exist. As regards the application dated 21.11.2014 also filed under Order 6 Rule 17 CPC is concerned this court feels that the reason assigned by the trial court in rejecting the application cannot be termed to be rendered in transgression of jurisdictional purviews of the trial court. The trial court has rightly held in respect of application dated 21.11.2014 that the subject matter of the amendment sought to be brought forth does not relate to pleadings but to evidence. Thus the impugned order so far as it rejects the application under Order 6 Rule 17 CPC dated 21.11.2014 is upheld.

As regards the other application dated 3.12.2014 under Order 6 Rule 17 CPC is concerned, it appears that the trial court has dismissed the same merely on the ground that the factual matrix forming the basis of the pleadings sought to be brought forth by way of the proposed amendment in the application dated 3.12.2014 has been denied by the plaintiff landlord. Order 6 Rule 17 CPC along with its proviso for convenience is reproduced herein below:-

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. 6. A bare perusal of the above said provision elicits that the trial court is empowered to allow either party to alter or amend the pleadings at any stage of the suit, provided the said alteration and amendment is necessary for determining the real question involved between the parties. The main part of this provision is circumscribed by the proviso incorporated w.e.f 1.7.2002 which bars allowing of amendment application once the trial has commenced ie the stage of Examination-in- Chief of the plaintiff''s witnesses has begun or the affidavits under Order 18 Rule 4 CPC are filed by the plaintiff as has been held in the case of Baldev Singh and Others Etc. Vs. Manohar Singh and Another Etc., unless the party seeking amendment establishes that the said amendment could not be raised before commencement of the trial without exercise of due diligence.

In the instant case the trial had commenced by reaching the stage where the plaintiff''s witness was over and had reached the stage of cross-examination of defendant''s witnesses.

Since the application under Order 6 Rule 17 CPC dated 3.12.2014 was based upon an incident which took place on 2.12.2014 which was a subsequent event having arisen after the filing of the suit and also after commencement of the trial, the bar contained in the proviso under Order 6 Rule 17 CPC cannot come in way of the defendant tenant in seeking amendment.

The findings recorded by the trial court that the amendment sought to be made in the application dated 3.12.2014 have been denied by the plaintiff landlord and therefore are unacceptable, cannot stand the test of law as mere denial of application under Order 6 Rule 17 CPC by the opposite party cannot alone become cause for rejection of the application.

In view of the above, it is evident that so far as the rejection of the application under Order 6 Rule 17 dated 3.12.2014 filed by the defendant petitioner is concerned the same cannot be countenance in law as the trial court has failed to exercise jurisdiction vested upon it under Order 6 Rule 17 CPC in an appropriate manner.

Accordingly, the present petition under Article 226 of the Constitution of India is disposed of with the following directions:-

The impugned order so far as it relates to the rejection of the application filed under Order 6 Rule 17 CPC preferred by the defendant/petitioner/tenant dated 21.11.2014 contained in Annexure P-4, is upheld

The impugned order so far as it relates to the rejection of the application filed under Order 6 Rule 17 CPC preferred by the defendant/petitioner/tenant dated 3.12.2014, is quashed.

The trial court is directed to reconsider the application under Order 6 Rule 17 CPC of the defendant dated 3.12.2014 in its true perspective in accordance with law after affording due and sufficient opportunity to the rival parties.