Nanda. M vs B. S. Raghavendra

Krishna S.Dixit, J

Petitioner being the defendant in an eviction suit in O.S.No. 352/2019 is knocking at the doors of the Writ Court for assailing the order dated

31.03.2021 a copy whereof is at Annexure-A whereby, her application in IA No.7 filed under Order VI Rule 17 of CPC, 1908 having been rejected,

the learned II Addl. Sr. Civil Judge, Mysuru, has denied leave to amend the Written Statement, the said amendment having the effect of withdrawing

the admissions made in the pleadings.

The respondent-plaintiff having entered Caveat through his counsel vehemently opposes the writ petition making submission in justification of the

impugned order and the reasons on which it has been predicated; he resists the petition on the ground that sanctioning amendment would amount to

permitting petitioner to withdraw the admissions in her pleadings; the amendment sought is highly belated and lacks bona fide; the subject application is

hit by the proviso to Order VI Rule 17 of the Code; the amendment would change structure of the defence in the suit to the prejudice of the plaintiff;

even otherwise, the conduct of the petitioner disentitles her to the grant of leave for amending the Written Statement; so contending, he seeks

dismissal of the Writ Petition.

Having heard the learned counsel for the parties and having perused the petition papers, this Court declines to grant indulgence in the matter for the

following reasons:

a) As to Amendment Application hit by proviso to Order VI Rule 17:

Suit of the respondent is for eviction; Written Statement has been filed way back in the year 2019; in fact, the Written Statement was belatedly filed

and the court below graciously accepted the same on record; admittedly, issues having been framed, the trial is half a through; at this stage, petitioner

has come up with the present application filed in March 2021; the affidavit supporting the application does not offer a plausible explanation for the

delay brooked in moving it, as rightly opined by learned trial Judge; the reliance of learned counsel for the petitioner on the decision of the Apex Court

in Usha Balashaheb Swami Vs. Kiran Appaso Swami, (2007) 5 SCC 602, does not much come to his assistance; at para 17 of the said decision, the

Apex Court has observed that the proviso to Order VI Rule 17 of the Code would not be applicable if the trial of the suit has not commenced; thus,

the petitioner’s application militates against the bar enacted by the Parliament in the Proviso.

(b) As to withdrawal of admissions in the pleadings:

Battle lines of the legal proceedings were drawn up when the petitioner filed her Written Statement on 22.12.2019 resisting the suit; with that she went

to the trial; at para no.6 of the Written Statement, petitioner has admitted the monthly tenancy; she states “…the agreed rate of rent of the

schedule premise was Rs.22,500/- per month…there was an agreement to pay enhanced rent at the rate of 47,500/- per month…†; at

para no. 8 of the Written Statement, she contends that there is no proper termination of the tenancy and that, the notice of termination of

tenancy is defective; at para no.7, she has denied being in arrears of rent; that being the position, at this belated stage, she wants to amend the

Written Statement to take up a new contention of five year oral lease for a total consideration of Rs. 9,00,000/- that too on the basis of the alleged

oral agreement dated 24.07.2017; if the leave is granted for the amendment, it virtually amounts to withdrawing the admission made by the petitioner in

her Written Statement; this runs counter to a long line decisions of the Apex Court to the effect that admissions made in the pleadings being

sacrosanct, cannot be readily permitted to be withdrawn at a belated stage; if withdrawal is permitted, that would prejudice the interest of the

respondent-plaintiff and therefore, it cannot be sanctioned; the version of the petitioner in the affidavit supporting the application does not justify

carving out an exception to this well established rule, as rightly contended by learned counsel for the respondent;

(c) As to absence of plausible explanation for the delay brooked and for seeking amendment:

The vehement contention of the petitioner that the request of the defendant for leave to amend the pleadings needs to be leniently considered qua

request of the kind from the side of the plaintiff, does not come to his support; the leniency pleaded cannot be stretched beyond its ordinary elasticity;

the only explanation offered by the petitioner at para 2 of her affidavit supporting the amendment application is “I was under great stress in view

of urgency of the matter … I could not properly convey and apprise my counsel regarding the entire facts of the case … the Written

Statement was filed in a hurry … Yesterday while discussing the case with my counsel, I found that the proper facts concerning my case

were not narrated properly …â€; this can hardly be an explanation for the delay brooked; admittedly, petitioner is facing a cheque bounce case in

C.C.No.261/2019; she has approached the police against the alleged forcible eviction; she had sent legal notice to the respondent-plaintiff; thus it is not

that petitioner is naïve and happens to be a stranger to the court proceedings; the version of the petitioner that in November 2020 her younger sister

Smt.Suma was diagnosed with breast cancer, hardly comes to her rescue since the Written Statement was admittedly filed on 22.12.2019 ie., almost a

year before such diagnosis; what is stated in the sworn affidavit does not justify her request for the leave to amend the Written Statement, at this

belated stage.

d) Lack of bona fide:

It has been a long settled position of law that the application seeking leave to amend the pleadings should exhibit the elements of bona fide; the subject

application does not do this; as already mentioned above, petitioner has taken up a specific stand as to there being tenancy, the rate of rent and the

enhanced rate of rent; that was her stand even before the police, regardless of the issue of credibility of the letter dated 31.03.2019 allegedly sent to

the police; the issues have been framed on the basis of the battle lines drawn by the parties in terms of their pleadings; that being the position, the

petitioner at this belatedly stage of the proceeding cannot turn around to take up a completely different stand, that too, in the absence of a plausible

explanation therefor; the request for leave to amend is made after the respondent-plaintiff has filed an application for a direction to the petitioner-

tenant to pay the arrears of rent; in fact, this Court in W.P.No.2392/2021 disposed off on 05.02.2021 had directed expeditious trial & determination of

the suit; accordingly, when the suit was being tried, petitioner has moved the subject application only as an afterthought and to delay the trial, as rightly

opined by the learned judge of the court below; there is no reason for this court to dislodge the said opinion and to form its own, in the absence of

contra-material on record; thus, bona fide is militantly lacking in the subject application.

e) As to five year oral lease:

The vehement contention of learned counsel for the petitioner that there was an oral lease for a tenure of five years entered on 24.07.2017 and this is

now sought to be introduced by amending the Written Statement, is legally untenable; the pleaded lease of the kind requires to be in writing and is

compulsorily registrable; thus oral leases of such a long tenure cannot be recognized in law; what is not legally permissible cannot be permitted to be

done indirectly or in a circuitous way as rightly contended by learned counsel for the respondent-plaintiff; the intended amendment virtually would

introduce a new defence and thus would cause material change in the structure of the defence in the suit; therefore, much milk cannot be derived by

the petitioner by placing reliance on the letter allegedly sent to the police; even otherwise, what is sought to be amended is not supported by the

contents of the letter; the said letter is addressed to the Station House Officer but it bears a bare seal of the Commissioner of Police with no signature

nor date entered therein, is the matter for consideration after trial; much is not being deliberated on this, lest the defence of the petitioner in the suit be

derailed.

f) As to leave to amend the pleadings is a matter of discretion :

Lastly, the impugned order denying leave to amend the Written Statement is a product of exercise of discretion by the learned trial judge in

accordance with the rules of reason & justice; such discretionary orders ordinarily do not merit a deeper examination at the hands of the writ court

exercising a limited supervisory jurisdiction constitutionally vested u/a 227 as held by the Apex Court in Sadhana Lodh Vs. National Insurance

Company Limited, (2003) 3 SCC 524, even if there are some arguable errors; of course, no errors could be pointed out by the learned counsel for the

petitioner despite a lengthy argument than the case deserve.

In the above circumstances, the Writ Petition being devoid of merits, is liable to be rejected and accordingly, it is.

This court very reluctantly refrains from levying the costs accepting the submission of learned counsel for the petitioner.

This court places its deep appreciation for the content of language & law with which the impugned order is crafted by the learned II Addl. Sr. Civil

Judge, Mysuru namely Mr.Santosh Kumar Shetty N. The Registry shall send a copy of this judgment to the learned Judge for his Personal File.