Mohan Lal Gupta & Another vs Smt. Jasveer Lata & Others

Sharad Kumar Sharma, J.

The petitioner is a tenant in the proceedings initiated by the respondent/landlord on 25.09.1996 by invoking Section 15 of the Provincial Small

Causes Courts Act, seeking ejectment from and recovery of arrears of rent of the tenement, which has been more appropriately defined as to be the

Premises bearing Municipal No. 10-2/1 Rampur Road, Haldwani, District Nainital (hereinafter to be called as the tenement in question) in the plaint.

The said Suit after being filed was registered as SCC Suit No. 10/1996 ‘Smt. Jasveer Lata & Others vs. Babu Lal’. Precisely the case was

based on the fact that the principal tenant-in-chief i.e. Babu Lal, the predecessor of the present petitioner, was inducted as the tenant in 1972 in the

premises in dispute by the owner Bhagirath Kala. Initially the tenement in question was let out for commercial purposes, but later on, the upper floor of

the building was permitted to be utilized for residential purposes also.

Case of the landlord/respondent was also that the tenant/petitioner has already constructed a property on Rampur Road and there exists no need for

the tenant as they have shifted to new residence at Rampur Road. It was also the case that tenant/petitioner had made material changes over the

tenement without prior permission of the landlord thereby reducing the utility of the property and has diminished its value. Thus landlord terminated

tenancy by notice dated 22.09.1995 under Section 106 of Transfer of Property Act.

The respondent nos. 1 to 4 had filed a Suit on the ground that they have purchased 2/3rd part of the property, which is under the tenancy of the

present petitioners from its erstwhile owner Bhagirath Kala by virtue of the sale deed dated 20.07.1994. At the time when they have purchased

property the petitioners were in default of rent and there were arrears of rent which was due to be paid by them at the rate of `25 per month payable

since 1990, and thus, the respondent/landlord invoked Section 20 of the Act No. 13 of 1972. On exchange of the pleadings the Suit was decreed by the

judgment dated 30. 07.2013. The petitioner has challenged the judgment dated 30. 07.2013 in a Revision under Section 25 of the Provincial Small

Causes Courts Act being SCC Revision No. 48/2013 ‘Mohan Lal Gupta vs. Smt. Jasveer & Others’. The Revision preferred by the petitioners

was allowed by the judgment dated 04.01.2018, and consequently thereto, the matter was remitted back to the Judge Small Causes Courts to decide

Suit No. 10/1996 afresh. The Revisional Court while parting with the judgment dated 04.01.2018 had made the following observations in its paragraph

25:

“25- fo}ku voj U;k;ky; }kjk ikfjr fd;s x;s izâ€uxr fu.kZ; esa ek= okn&i= o izfrokn&i=ksa esa mYysf[kr vfHkopuksa rFkk mHk;i{k }kjk miyC/k

djk;s x;s uthjksa ds ukeksa o lk{khx.k ds dFkuksa ds dqN dqN vaâ€kksa dks gh vafdr fd;k x;k gS o uthjksa esa fn;s x;s fl)kUrksa dk mYys[k ugha

fd;k x;k rFkk mijksDr of.kZr fcUnqvksa ds laca/k Li’V o iw.kZ fu’d’kZ fn;s gh ugha x;s gSa tcfd ,slk fd;k tkuk vknsâ€k 20 fu;e&4 lh-ih-

lh ds izko/kku vUrxZr vkoâ€;d Fkk tSlk fd ekuuh; loksZPp U;k;ky; }kjk jkesâ€oj n;ky ¼mijksDr½ ds izdj.k esa izfrikfnr fd;s x;s ck/;dkjh fl)kUrksa

ls Li’V gSA

26- ,slh fLFkfr esa bl U;k;ky; ds erkuqlkj] fo}ku voj U;k;ky; }kjk Lo;a dks izkIr {ks=kf/kdkj dk mfpr :Ik esa ikyu ugha fd;k x;k vkSj izâ€uxr fu.kZ;

fof/kd :Ik ls =qfViw.kZ gS ftl dkj.k izdj.k dks izfrizsf’kr fd;k tkuk vkoâ€;d gS rkfd mijksDr of.kZr fcUnqvksa ds laca/k esa fo}ku voj U;k;ky; }kjk

mHk;i{k esa rdksZa dks lqudj ;Fkkâ€kh?kz iqu% fu.kZ; ikfjr fd;k tk;s ftlesa mfpr vo/kkj.kh; fcUnqvksa dk mYys[k djrs gq, muds laca/k esa

i`Fkd&i`Fkd fu’d’kZ vk ldsA rnkuqlkj fuxjkuh Lohdkj gksus ;ksX; gS tcfd izâ€​uxr fu.kZ;

vikLr gksus ;ksX; gSAâ€​

According to the directions issued by the Revisional Court, the parties to the lis before the Revisional Court were supposed to appear before the

Trial Court on 15.01.2018. On the said date the Court has fixed 20.01.2018 for framing of the issues.

The case of the petitioner is that at the time when they were preparing the case for its adjudication before the Trial Court on remand they could

realize certain legal grounds which were necessarily required to be amended by adding the same by way of a pleading in the written statement. The

contention of the petitioner is that the amendments as proposed in the application filed under Order VI Rule 17 on 20.01.2018 were necessary for the

determination of the real question between the parties as it entailed consideration of the issue as to what would be the effect of the purchase made by

the respondents by the sale deed dated 20.07.1994 in relation to the extent

of purchase, which as per sale deed was limited to 2/3rd share, secondly as to whether there could be a splitting of tenancy, and lastly, whether there

could be a splitting of cause of action for initiation of the proceedings of the SCC Suit. Consequent thereto, the petitioner is said to have filed an

application paper no. 217 C by invoking Order VI Rule 17 read with 151 of Code of Civil Procedure.

In the said application of the petitioner proposed to incorporate number of paragraphs pertaining to the incidents and events which were available to

him to be pleaded even prior to the judgment of remand dated 04.01.2018 passed by the Revisional Court and even prior to institution of the Suit. In

short, rather the amendment sought was also intending to draw the impact of Order VII Rule 11 at a highly belated stage after 22 years of initiation of

the Suit, wherein, he intended to plead the fact of non-existence of cause of action, however, this realization on remand has a malicious motive and

beyond the scope of directives of remand. The amendment proposed to be incorporated was to the effect as to how could there be a claim of rent

since 1990 i.e. a period prior to the purchase made by the respondent.

The amendment application as preferred by the petitioner was objected by the respondent by filing an objection on 23.01.2018 to the effect that the

other co-revisionist had neither intended to file amendment nor had authorized him to do so, hence deserves rejection. Amendment has been filed by

misleading the Court. It was objected by the respondent on the ground that if the remand order is considered, it directed remittance for consideration

of the impact of Order XX Rule 4 of the Code of Civil Procedure. The said amendment application has been rejected by the learned Trial Court by the

judgment dated 07.02.2018 and later on a challenge given to the said order in Revision No. 11/2018. The same stood confirmed by the dismissal of

Revision by the impugned judgment dated 09.2018. Consequently, the present Writ Petition for the following reliefs:

“I. To issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 07.02.2018 (annexure No. 1) passed by the

learned Judge Small Causes/Civil Judge (Jr. Div.), Haldwani District Nainital and the order dated 12.09.2018 (Annexure No. 2) passed by the

Learned 1st Additional District Judge, Haldwani District Nainital in the S.C.C. Revision No. 11 of 2018 and directing the Judge Small Causes/Civil

Judge (Jr. Div.) to allow the amendment application 217 C (Annexure 8 to the writ petition).

II. Any other relief which this Hon’ble Court may deem fit and proper, may kindly be awarded in favour of the petitioner and against the

respondents.

III. Award the cost of the petition in favour of the petitioner and against the respondents.â€​

The respondents in their objection to application paper No. 217 ga has specifically pleaded that, the petitioner was not authorized by other

defendants nor the other defendants have engaged their advocate, his objection taken by the landlord/respondent was not specifically denied nor it was

met in the argument by the petitioner. Even if the application of petitioner is considered, it could be seen that when the order of remand made by the

Revisional Court on 04.01.2018, was definitely intending to meet a certain procedural lacuna committed by the Trial Court by not considering and

recording any finding on Order XX Rule 4, thus remand directed the Trial Court to frame an issue on the same and decide afresh, hence, the direction

of remand was limited on the lacuna pointed out. Thus the scope of proceedings could not have been widened by the petitioner beyond the scope of

remand, more particularly, when the petitioner has not challenged the remand order by filing any Writ Petition, he would be bound by the limited

directions issued by the Revisional Court, because otherwise the parties have adduced their complete evidence.

Considering the mode adopted by the petitioner their sole intention was to delay the proceedings so that the Suit, which has been instituted in 1996,

now pending for almost 22 years is not decided, that is why the petitioner has been strategically changing counsels. It is also one of the ratio, which is

to be borne in mind that, any amendment containing vague and general statements, which are raised belatedly introducing time barred plea which has

an impact of introducing time barred plea or claim, which has an effect of depriving the right accrued to the other party should not be permitted to

achieve such objective.

For the purposes of answering the argument as extended by the learned counsel for the petitioner to the effect that the limitations of seeking an

amendment as contemplated by the Amending Act No. 22/2002, by bringing in amendment in the provisions contained in Order VI Rule 17 of the code

of civil procedure regards to the stage at which the amendment could be permitted to be carried. The argument is to the effect that the amendment as

made would not be applicable to the proceedings, which has been drawn prior to the amendment, which in the instant case happens to be of 1996. On

scrutiny of the amendment application it could also be inferred that the basic attempt of the petitioner was to somehow delay the proceedings of the

Suit, which has been instituted as back as 1996. By making an effort to incorporate the amendment with regards to the fact and the situation which

prevail much prior in time and as such it could be said amendment proposed was nothing but an after thought action on part of the petitioner. Both the

Courts below had concurrently held that the proceedings stood concluded and a judgment was rendered by the Trial Court on 30.07.2013, hence, as a

matter of fact, on the conclusion of the trial the amendment ought not to be permitted, which results into a de novo trial in a concluded case.

Thus, this court finds no anamoly in the concurrent judgments impugned in the Writ Petition rejecting Order VI Rule 17 of the petitioner, preferred

after 22 years of institution of Suit, seeking to amend the fact, which was even existing prior to institution of Suit in 1996. No merits in the Writ

Petition. The same is dismissed. There would be no order as to cost.