Om Pal Singh vs Rajesh Kumar Kaura

Lok Pal Singh, J

1) Civil Revision under Section 25 of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as 'the Act'), is directed against the order dated 25.09.2019, passed by Judge, Small Cause Courts / 6th Addl. District Judge, Dehradun, in S.C.C. Suit No. 67 of 2016, Rajesh Kumar Kaura vs Om Pal Singh, whereby the amendment application (paper no. 44C-1) filed by the respondent / plaintiff has been allowed.

2) Facts leading to filing of present case are that respondent / plaintiff filed said suit claiming himself to be the owner and landlord of the suit property with the averments that the suit property was let out by him to the revisionist / defendant no. 1 on 10.11.1998 for a period of 11 months at the rate of Rs.1200/- per month, details of which are mentioned in the foot of the plaint. It is averred that the defendant no. 1 did not pay the rent to the plaintiff since 01.01.2007 and also sub-let the said property to one Mehtab, who has been arrayed as defendant no. 2 in the suit. It is further averred that defendant no. 1 also made some material alteration in the suit property and raised tin shed and other construction without seeking written permission of the landlord / plaintiff.

3) Revisionist / defendant no. 1 filed his written statement on 10.07.2017, denying the plaint averments. It is stated that the defendant no. 1 is in possession over the suit property since about 40 years and running the business of spare parts. It is also stated that it is wrong to say that defendant no. 2 is running a juice and confectionery shop in the suit property. It is further stated that since the defendant no. 1 is in possession for more than about 40 years, therefore, the respondent / plaintiff is debarred to seek the possession now from the defendant no. 1 and the suit is barred by Section 27 of the Limitation Act. Lastly, it is stated that the plaintiff is not entitled to get any rent and damages from the defendant no. 1, as the defendant was never a tenant of the plaintiff.

4) Respondent / plaintiff filed his affidavit of examination-in-chief on 16.11.2017 and also filed his replication (paper no. 22C) to the written statement of defendant no. 1 on 06.11.2017, as also the copies of the documents. An affidavit of examination-in-chief of PW1 Rajesh Kumar Kaura was also adduced on that day. The case was fixed for cross-examination of the plaintiff on 07.12.2017. The cross-examination was not done on several dates. On 15.05.2018, the said case was transferred to the court of 6th Addl. District Judge, Dehradun. On receipt of the record of the case, the said court issued notices to the defendants. The plaintiff remained present on the date fixed but the defendant or his counsel did not appear in the transferee court. Then the transferee court was constrained to issue notices to the defendants, but he avoided the service of notice on several occasions and ultimately denied to receive the notice. The transferee court held service sufficient upon the defendants and directed that the suit shall proceed ex parte against them and fixed 24.05.2019. On 24.05.2019, the plaintiff made an endorsement that he does not wish to file any further evidence in the matter. The trial court fixed 02.07.2019 for arguments. In the meantime, on 29.05.2019, the revisionist / defendant no. 1 moved an application to recall the order, whereby the suit was directed to proceed ex parte against him. The trial court vide order dated 03.09.2019, set aside the ex parte order. Revisionist / defendant no. 1 moved an application (paper no. 35C) that the replication filed by the plaintiff be cancelled as there is no provision to file the replication against the pleadings raised in the written statement. Plaintiff filed his objection (paper no. 36C). The trial court vide its order dated 20.09.2018 dismissed the application filed by the defendant. Feeling aggrieved by order dated 20.09.2018, the revisionist / defendant no. 1 preferred Civil Revision no. 111 of 2018 before this Court.

5) A co-ordinate Bench of this Court vide order dated 07.12.2018 was pleased to dismiss the said civil revision. However, it was observed that there was no provision of filing the replication. The relevant paragraph of said judgment is extracted hereunder:

"If that be so, while dismissing this revision at this stage, it is directed that when the Judge, Small Causes Court proceeds to adjudicate the suit itself on merits, he would not consider those pleadings on facts, which do not go in league with the pleadings of the plaint are raised for the first time, in the replication. However, having said so, this does not mean that it would be creating any restriction for the plaintiff in raising any amendment of the said pleading as pleaded in paras 1, 2 and 3 by invocation of Order 6 Rule 17."

6) Immediately after the order dated 07.12.2018 passed by this Court, plaintiff moved an application for amendment under Order 6 Rule 17 read with Section 151 of CPC, stating therein that the plaintiff has instituted the aforesaid suit against the defendants on the ground that the suit property was let out on 10.11.1998 for a period of 11 months at the rate of Rs.1200/- per month, the defendant no. 1 has filed his written statement that he is not the tenant of the plaintiff. However, a replication was filed by the plaintiff, which was taken on record vide order dated 13.09.2018. Thereafter, an application was moved by the defendant no. 1 that the order taking the replication on record be set aside. The trial court rejected the application of the defendant no. 1 vide order dated 20.09.2018. thereafter, Civil Revision no. 111 of 2018 was filed before this Court. The High Court dismissed the revision vide judgment dated 07.12.2018 with the observation that the plaintiff may file the amendment application. It is stated that on perusal of the judgment passed by the High Court it would reveal that the plaintiff has been advised to move the amendment application for final and effective adjudication of the case and to avoid the complication and to minimize the litigation. It is also stated that the amendment application is being filed with the prayer that the plaintiff be permitted to incorporate paragraph nos. 1/1 to ¼ in the plaint in view of the observations made by the High Court in the aforesaid judgment.

7) Revisionist / defendant no. 1 filed his objection (paper no. 45C-1) to the amendment application, stating therein that the proposed amendment application is mala fide and, if the same is allowed, it will change the nature and character of the suit. It is contended that the plaintiff issued a notice dated 02.11.2016 to the defendant no. 1. Plaintiff did not produce the documents along with the suit. It is further contended that the defendant is in admitted possession of the suit property since 10.11.1998, which is a period for more than 12 years without any claim for possession thereof from the defendant. The said legal impediment renders the instant case involving intricate question of title and thus render the plaint to be returned under Section 23 of the Act to be filed on the original side. Further objection has been raised that the provisions contained in Order 6 Rule 17 of Code of Civil Procedure, 1908 after amendment in 2002, enshrines that the parties have to file all the documents with the plaint on which reliance is placed. The plaintiff even then did not file the same with the plaint and has introduced the same after the written statement of the defendant, by way of replication and now when the same has been scrapped by the Hon'ble High Court, is now trying to introduce the same by way of amendment in the plaint to make it a totally new plaint inconsistent with the plaint averment.

8) Learned trial court having heard learned counsel for the parties on the amendment application and objection filed thereon by the revisionist, allowed the amendment application vide order dated 25.09.2019. The trial court has observed in its order that the plaintiff filed the amendment application after the decision of the Hon'ble High Court and his case rests upon the rent deed dated 10.11.1998, which is the date mentioned in the plaint. The trial court has further observed that the plaintiff has not even made any averment that there was any oral tenancy between them. The case was fixed for cross-examination. The argument advanced on behalf of the defendant before the court below was that the amendment cannot be allowed in view of the proviso to Order 6 Rule 17 of CPC. Further, the court below has also considered the fact that the defendant no. 1 had preferred the revision before the Hon'ble High Court. The High Court vide its judgment dated 07.12.2018 observed that by way of replica cognizance of the pleadings cannot be taken. However, the plaintiff may file the amendment application, meaning thereby, impliedly this Court has granted liberty to the plaintiff to move the amendment application.

9) Having considered the fact that the amendment is necessary for proper adjudication of the case, the trial court by order dated 25.09.2019 allowed the amendment application imposing a cost of Rs.500/- and directed that the amendment be carried out within three days and additional written statement, if any, be filed by 19.10.2019.

10) Heard Mr. S.K. Jain, learned Senior Counsel for the revisionist and Mr. Siddhartha Sah, learned counsel for the respondent and perused the material available on record.

11) Learned Senior Counsel appearing on behalf of the revisionist would submit that the trial of the case has commenced and there was no due diligence of the plaintiff in moving the amendment application since the plaintiff could not assert in his amendment application that in spite of due diligence he could not file the amendment application. The amendment application ought not have been considered in view of the proviso to Order 6 Rule 17 of CPC.

12) Order 6 Rule 17 of the Code of Civil Procedure, 1908 is excerpted hereunder:

"Order VI - Pleadings generally

Amendment of pleadings. -The Court may at any stage of the proceedings allow either party to alter or amend his pleading 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 commended, 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."

13) Learned Senior Counsel appearing for the revisionist has placed reliance on the following judgments:

i) Ajendraprasadji N. Pande Vs Swami Keshavprakeshdasji N, AIR 2007 SUPREME COURT 806

ii) Ramji Vishwakarma Vs Smt. Manupa Devi, 2013 (97) ALR 45 (Allahabad High Court)

iii) Narendra Singh Vs Anil Kumar and others, 2019 (135) ALR 156 (Uttarakhand High Court)

iv) M/s Revajeetu Builders & Developers Vs M/s Narayanaswamy & sons, 2009 (77) ALR 654 (S.C.)

v) Prabhu Niwas @ Kapil Deo & another Vs Laxmi Narain & others, 2006 (1) ARC 696.

14) On the other hand, Mr. Siddhartha Sah, learned counsel for the respondent / plaintiff would submit that the replication was filed by the plaintiff against the written statement filed by revisionist / defendant no. 1, which was taken on record. Thereafter, an application was filed by the defendant no. 1 before the trial court that the replication filed by the plaintiff against the written statement be cancelled. The application so filed by the defendant was rejected by the trial court vide order dated 20.09.2018. Feeling aggrieved by order dated 20.09.2018, the revisionist / defendant no. 1 preferred Civil Revision no. 111 of 2018, Om Pal Singh Vs Rajesh Kumar Kaura before this Court. A coordinate Bench of this Court vide judgment dated 07.12.2018 dismissed the said civil revision. Learned counsel for the respondent would submit that while dismissing the revision, the coordinate Bench of this Court has observed that it would not be construed that it would be creating any restriction for the plaintiff in raising any amendment of the said pleadings as pleaded in paras 1, 2 and 3 by invocation of Order 6 Rule 17 CPC. He would further submit that since High Court has observed that the plaintiff may file an amendment application the same was filed by the plaintiff. He would also submit that the trial court has categorically considered that the amendment sought by the plaintiff is necessary for proper adjudication of the case. He has raised an issue that Mehtab, the sub-tenant, has been impleaded as defendant no. 2 in the suit, but he has not been impleaded party to the present revision. It is contended that by allowing the amendment application, no prejudice has been caused to the defendants. It is contended that since the cause shown by the plaintiff from the very inception is that the suit property was let out to the defendant no. 1 on 10.11.1998 and the pleading taken by the plaintiff by way of amendment is only referring the rent deed dated 10.11.1998, which neither change the nature of the suit nor is causing any prejudice to the defendant no. 1. He would further submit that the trial court has also granted time to the defendant no. 1 / revisionist to file additional written statement to the amended pleadings.

15) Learned counsel for the respondent has placed reliance on the judgments rendered by Hon'ble Apex Court in Abdul Rehman & another Vs Mohd. Ruldu & others (2012) 11 SCC 341; Andhra Bank Vs ABN Amro Bank N.V. & others (2007) 6 SCC 167; Sampath Kumar Vs Ayyakannu & another (2002) 7 SCC 559; Estralla Rubber Vs Dass Estate (P) Ltd. (2001) 8 SCC 97 and Pankaja & another Vs Yellappa (Dead) by LRs & others (2004) 6 SCC 415.

16) In the case of Ajendraprasadji (supra) cited by learned Senior Counsel for the revisionist, the Hon'ble Apex Court in paras 33, 37, 53 and 54 of the judgment (supra) has held that the court should have allowed all the amendment, if the amendment is necessary for proper adjudication of the case and to minimize the litigation and if the amendment sought does not cause any prejudice to the other side. Relevant paras of said judgment are reproduced here-in-below:

"33. Ultimately to strike a balance the Legislature applied its mind and re-introduced Rule 17 by Act 22 of 2002 w.e.f. 01.07.2002. It had a provision permitting amendment in the first part which said that the Court may at any stage permit amendment as described therein. But it also had a total bar introduced by a proviso which prevented any application for amendment to be allowed after the trial had commenced unless the Court came to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial. It is this proviso which falls for consideration.

Mr. Desai also submitted that the issues were framed on 28.09.2005 and on 21.11.2005 the respondents filed an affidavit of examination-in-chief and it is after the trial had commenced that appellant no. 2 moved an application on 24.11.2005 seeking leave to amend the written statement. According to him, there is absence of due diligence on the part of the appellants.

An argument was advanced by Mr. Parasaran that affidavit filed under Order 18, Rule 4 constitutes Examination-in-Chief. The marginal note of Order 18, rule 4 reads recording of evidence. The submission is that after the amendments made in 1999 and 2002 filing of an affidavit which is treated as examination-in-chief falls within the amendment of phrase recording of evidence.

It is submitted that the date of settlement of issues is the date of commencement of trial. [Kailash vs Nanku & others, (2005) 4 SCC 480]. Either treating the date of settlement of issues as date of commencement of trial or treating the filing of affidavit which is treated as examination-in-chief as date of commencement of trial, the matter will fall under proviso to Order 6, Rule 17, CPC. The defendant has, therefore, to prove that in spite of due diligence, he could not have raised the matter before the commencement of trial. We have already referred to the dates and events very elaborately mentioned in the counter affidavit which proves lack of due diligence on the part of the defendant nos. 1 and 2 (appellants)."

17) Having heard learned counsel for the parties and considering the ratio of judgments (supra) this Court finds that the respondent / plaintiff has filed the amendment application in view of the observation made by the co-ordinate Bench of this Court vide judgment dated 07.12.2018 and the trial court has further observed that the amendment sought by the plaintiff is necessary for proper adjudication of the case and it does not prejudice the rights of the defendants as the pleadings is not inconsistent with the pleadings raised by the plaintiff. The Revisionist / defendant no. 1 could not show that any prejudice has been caused to him in allowing the amendment application.

18) On the perusal of the findings recorded by the court below and the ratio of law laid down by Hon'ble Apex Court in Raj Kumar Bhatia Vs Subhash Chander Bhatia, (2018) 2 SCC 87 and Radhey Shyam vs Chhabi Nath, (2015) 5 SCC 423, this Court finds that once the amendment is allowed by the trial court having considered the fact that the amendment is necessary for proper adjudication of the rights of the parties and no prejudice has been caused to the defendant no. 1 and further it will minimize the litigation. Though, this Court finds that the trial court has not recorded any finding that the amendment application has been filed on due diligence of the plaintiff, but the fact remains that on filing replication by the plaintiff, an application has been filed by the revisionist / defendant no. 1 with the prayer that the replication be set aside. However, said application was rejected. Said order was challenged in a civil revision. The revision has also been dismissed. The net effect of the dismissal of the revision would be that the pleadings raised by the plaintiff by way of replication would remain intact. Though observation has been made by the court that the replication cannot be considered, but the order taken on record the replication has not been set aside. Besides this, the coordinate Bench has dismissed the revision with some observation. The observations of the coordinate Bench has two edges. Firstly, it depicts from the order that the trial court has observed that the replication should not be read, but the second edge of the order is that the coordinate Bench of this Court has impliedly permitted the plaintiff to move the amendment application. The order passed by the coordinate Bench has not been assailed by the revisionist, which has attained finality and is binding on the parties. Thus, the respondent / plaintiff cannot be left remediless by striking off his replication or debarring him to file the amendment application. Further in view of the proviso to Order 6 Rule 17 CPC as well as the dictum of Hon'ble Apex Court in the judgments (supra) the ratio of the judgment is that all types of amendments should be allowed, which are consistent with the previous pleadings and no prejudice has been caused to the defendant. Rule of procedure is for hand maid of justice, the technicalities should not stand in its way.

19) In the words of Justice R.M. Sahai (as he then was) in S. Nagaraj Vs State of Karnataka, 1993 Supp (4) SCC 595 -"Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness." Further, Ranganath Misra, J. (the then) in Dharwad PWD Employees' Assn. Vs State of Karnataka (1990) 2 SCC 408, in para 24, has observed -"....it is the obligation of the court to individualise justice to suit a given situation in a set of facts that are placed before it." Chief Justice Sabyasachi Mukharji (the then) in Charan Lal Sahu Vs Union of India (1990) 1 SCC 613, in para 124 has observed -"....justice is a psychological yearning, in which men seek acceptance of their viewpoint by having an opportunity of vindication of their viewpoint before the forum or the authority enjoined or obliged to take a decision affecting their right. Yet, in the particular situations, one has to bear in mind how an infraction of that should be sought to be removed in accordance with justice....'To do a great right' after all, it is permissible sometimes 'to do a little wrong'."

20) Besides this, I do not find force in the contention of learned Senior Counsel appearing for the revisionist that the trial court should not have allowed the amendment application when due diligence was not proved. Since the drafting of pleadings or amendment application depends upon the legal acumen of a particular Advocate, a litigant should not be made to suffer for any improper advice or improper drafting of pleadings in an amendment application. It is also settled proposition of law that mere technicalities should not come in way of dispensation of justice as the duty casts upon the Court is to separate chaff from the grain. In my view, the duty of the Court is to do justice, justice and justice and nothing else.

21) In exercise of revisional jurisdiction under Section 25 of the Act or in exercise of writ jurisdiction under Article 227 of the Constitution of India, the revisional jurisdiction can be invoked in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction. By taking the grounds in the revision and in the objection filed before the court below against the amendment application, the revisionist has tried to build up a case that the suit is barred by Section 23 of the Act, which cannot be considered at the time of allowing or rejecting the amendment application.

22) A perusal of the order impugned would reveal that by means of amendment the plaintiff only has pleaded that there was a written agreement dated 10.11.1998 between the plaintiff and defendant no. 1, which is consistent with the previous pleadings of the plaintiff that the property in dispute was let out by the plaintiff to the defendant no. 1 on 10.11.1998. Since the trial court has recorded cogent reasons in allowing the application and the defendant no. 1 / revisionist failed to make out any case that any prejudice or miscarriage of justice has been occasioned with him, this Court does not find any ground to interfere with the order impugned.

23) Hon'ble Apex Court in the case of Raj Kumar Bhatia Vs Subhash Chander Bhatia, (2018) 2 SCC 87 has held that in exercise of revisional jurisdiction under Article 227 of the Constitution of India and in a similar provision of revision, normally the Court should not interfere with the order if no prejudice or miscarriage of justice has occasioned and the Court finds that none of the conditions laid in Section 115 of the CPC or the criteria fixed for interference in exercise of revisional jurisdiction framed by the Hon'ble Apex Court in the Constitutional Bench judgment of Radhey Shyam vs Chhabi Nath, (2015) 5 SCC 423 has been breached by the subordinate court.

24) In view of the above discussion, this Court has no reason to interfere with the order impugned passed by the court below.

25) The civil revision is devoid of merit and is liable to be dismissed. The same is hereby dismissed. No order as to costs.

26) Having considered the fact that the suit is pending since 2016, the court below shall make an endeavour to decide the suit expeditiously, in accordance with law, and granting of unnecessary adjournments to either of the parties should be avoided.