M. Vardhman Agencies vs Rameshchandra S/O Dharamchand Jain

THE petitioner has filed the present petition being aggrieved by the order dated 14.09.2017 whereby the learned Trial Court has dismissed the

application filed under Order VI Rule 17 of the CPC.

[2] The Respondent/plaintiff had filed the suit for eviction and arrears of rent against the present petitioner/defendant. The plaintiff is an owner of

House No.11, South Yeshwantganj, Indore which was given on rent to the present petitioner for commercial use since 01.11.1984.

[3] The defendant/petitioner filed the written-statement under Order VIII Rule 1 of the CPC on 22.08.2016 admitting the tenancy. Thereafter the Trial

Court framed the issues for adjudication and the suit is now listed for plaintiff's evidence.

[4] At this stage the defendant filed an application under Order VI Rule 17 of the CPC seeking amendment in the written-statement on the ground

that the tenancy with the defendant came to an end in the year 2007 and the vacant possession had already been handed over to the plaintiff.

Thereafter the plaintiff has given the said premises to another Partnership Firm of his family in the name of “P.K. Textileâ€. The tenancy was oral

and the said firm started paying the rent to the plaintiff. Kamlesh Kumar Vardhman was a Partner in the defendant firm as well as in the new firm but

since 2013 he has left the firm P.K.Textile and now only Priyesh Parakh and Manglesh Parakh are the Partners. The present amendment application

is filed in order to give the correct facts before the Court and also in order to decide the controversy between the parties. The amendment is

necessary for adjudication of the suit. According to the defendant these facts are in in the knowledge of the plaintiff that the defendant is not the

tenant and the suit suffers from non joinder of parties.

[5] The plaintiff filed a detailed reply to the aforesaid application by submitting that the proposed amendment is contrary to the settled principal of law.

The defendant had already admitted the tenancy with the plaintiff and now he cannot be permitted to withdraw the admissions made in the written-

statement. The trial has begun and as per the proviso under Order VI Rule 17 of the CPC the amendment is not permissible.

[6] By order dated 14.09.2017 the learned Trial Court has rejected the application under Order VI Rule 17 of the CPC. Hence, the present petition

before this Court.

[7] Shri N.L.Tiwari, learned counsel appearing for the petitioner submits that the learned Trial Court has wrongly exercised its discretion. The suit

against the present defendant is not maintainable as the defendant is not the tenant in the suit accommodation and the tenancy is with P.K.Textile

since 2007. In support of his contention, he has placed reliance over the decision of the Apex Court in the case of Usha Balashaheb Swami v/s Kiran

Appaso Swami [AIR 2007 SC 1663] in which the Apex Court has held that the defendant can be permitted to raise inconsistent pleas and the

defendant is not going to withdraw the admissions but clarifying the correct facts as the amendment is clarificatory in nature.

[8] Shri Vishal Baheti, learned counsel appearing for the Respondent argued in support of the impugned order by submitting that the amendment in the

written-statement after commencement of trial is not permissible. The admissions made in the written-statement cannot be withdrawn. In support of

his contention, he has placed reliance over the decision of the Apex Court in the case of Vidyabai v/s

[9] The scope of Order VI Rule 17 of CPC has been considered by the Apex Court in the following judgments :

Baldev Singh v/s Manohar Singh [(2006) 6 SCC 498]; State of Bihar v/s Modern Tent House [(2017) 8 SCC 567]; Vidyabai v/s Padmalatha [2009 (3)

MPLJ 122] and the judgment of this Court in the case of Pratap v/s Ganeshram [2014 (3) MPHT 212].

[10] That in the case of Baldev Singh (supra), the Apex Court has held 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. It has been further held that the commencement of trial as used in

proviso to Order VI Rule 17 of CPC must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing

of documents and addressing of arguments.

[11] In the recent judgment of Apex Court in the case of Chakreshwari Construction Pvt. Ltd. V/s Manohar Lal [2017 (3) MPLJ 717 (SC)], the Apex

Court has held that if the amendment proposed do not change the nature of the case originally set up by the plaintiff, do not introduce any fresh cause

of action; no prejudice is likely to be caused to the Respondent because the Respondent in such eventuality would have got an opportunity to make

consequential amendment in the written statement and file additional documents in rebuttal, the Trial Court ought to have allowed the application filed

under Order VI Rule 17 of CPC. Para 14 to 16 of the judgment are reproduced below :-

“14. The principle applicable for deciding the application made for amendment in the pleadings remains no more res integra and is laid down in

several cases. In the case of Revajeetu Builders and Developers v. Narayanaswamy & Sons and others, 2009 MPLJ Online (S.C.) 8 = (2009) 10

SCC 84, this Court, after examining the entire previous case law on the subject, culled out the following principle in Para 63 of the judgment which

reads as under:

“63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while

allowing or rejecting the application for amendment:

(1) whether the amendment sought is imperative for proper and effective adjudication of the case;

(2) whether the application for amendment is bona fide or mala fide;

(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and

(6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of

application.

These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only

illustrative and not exhaustive.â€​

Applying the aforesaid principle of law to the facts of the case at hand, we are of the considered opinion that the amendment proposed by the

Appellant so also the permission sought for filing additional documents deserved to be allowed.â€​

[12] In the present case, the defendant filed the written-statement admitting the tenancy. The written-statement was duly verified and signed by

Kamalesh KumarVardhman as a Partner of the defendant firm. All the facts stated in the application under Order VI Rule 17 of the CPC were in the

knowledge of the defendant at the time of filing of the written-statement. He has not given any explanation in the application as to why he has not

disclosed these facts in the written-statement. By way of amendment he is trying to withdraw his admissions made in the written-statement.

[13] In the case of Chakreshwari Construction Pvt. Ltd. (supra), in para 15 the Apex Court has given the five reasons for allowing the application for

amendment. Para 15 of the order is reproduced below :-

“15. It is for the reasons that firstly, the amendment proposed did not change the nature of the case originally set up by the Appellant in the eviction

petition; Secondly, the amendment did not introduce any fresh cause of action; Thirdly, the amendment was relevant for deciding the question of

subletting and availability of alternative accommodation with the Respondent; Fourthly, the facts proposed in the amendment not being in the personal

knowledge of the Appellant and having obtained from the concerned State department recently, the same could be allowed to be brought on record for

its consideration; Fifthly, no prejudice was likely to be caused to the Respondent, if the applications had been allowed because the Respondent in such

eventuality would have got an opportunity to make consequential amendment in his written statement and file additional documents in rebuttal; and

lastly, in order to prove the case, the amendment proposed and permission to file documents should have been granted.â€​

[14] In the present case the application for amendment has rightly been dismissed as the (i) defendant by way of proposed amendment is trying to

withdraw the admissions made in the written-statement that defendant firm is not the tenant; (ii) this fact was very much in the knowledge of the

defendant at the time of filing of written-statement; (iii) P.K.Textile is another firm of the defendants family and (iv) the two new Partners of

P.K.Textile are family member. Therefore, by way of this amendment the defendant is trying to defeat the case of the plaintiff by introducing new

defence. There is no explanation for delay in filing application that after commencement of trial. Hence, the learned Trial court has rightly rejected the

application.

[15] According to the defendant if he is not the tenant in the premises and already handed over the possession to the plaintiff, hence it may not contest

the suit. Since defendant is challenging the impugned order, therefore, it is clear that defendant is interested in the tenancy. Therefore, the amendment

is not bona-fide and keeping in view the aforesaid principle laid down by the Apex Court, the learned Trial Court has rightly rejected the application.

[16] In view of the aforesaid, the learned Trial Court did not commit any error while rejecting the application under Order VI Rule 17 of CPC. The

petition is hereby dismissed.

No order as to costs.