Prem Nath Sharma vs Krishna Singh and another

Rakesh Tiwari, J.—Heard learned counsel for the parties and perused the record.

This writ petition has been preferred by the petitioner challenging the validity and correctness of the order dated 5.8.2010, appended as Annexure8 to the writ petition passed by the Additional District Judge/Special Judge (Anti Corruption), Varanasi in Rent Appeal No. 78 of 2008, Gangajali and another versus Krishna Singh whereby the amendment application has been rejected.

Brief facts of the case are that P.A. Case No. 45 of 2003, under Section 21(1) A of U.P. Act No. 13 of 1972 was filed by the mother of respondent no.1 against the petitioner and his mother Smt. Gangajali in the Court of First Additional Civil Judge/Prescribed Authority, Varanasi for ejectment of the petitioner from shop no.2 of house no. 48/139A MohallaMisir Pokhara, Varanasi on the ground that she was the landlady of the shop in question and was in bonafide need of the same.

The petitioner and his mother filed their written statements denying the plaint allegations.

After considering the arguments of both the parties and going through the records of the case, the Prescribed Authority/Civil Judge (Senior Division), Varanasi vide his order dated 22.4.2008 allowed P.A. Case No. 45 of 2003 directing the petitioner and her mother to vacate and handover peaceful possession of the shop in dispute to the landlord.

Aggrieved by the aforesaid order dated 22.4.2008, the petitioner filed Rent Control Appeal No. 78 of 2008, Gangajali and another versus Krishna Singh before the Appellate court.

During the pendency of appeal, the petitioner moved an application paper no.16Ka dated 17.8.2009 under Order 6 Rule 17 C.P.C. read with Section 151 C.P.C. before the Additional District Judge/Special Judge (AntiCorruption) Varanasi for amending his written statement by adding a new paragraph 18Aa in between paragraph nos. 18 and 19 of the written statement by which he wanted to give details of the total tenants and rooms of the house in question. The amendment sought by him is quoted below for ready reference.

The petitioner contends that if the amendment is allowed, it will take suit away from the ambit of U.P. Act No. 13 of 1972.

Respondent no.1 filed his objection to the aforesaid amendment application filed by the petitioner stating therein that such amendment will change the nature of the case and it cannot be permitted at the appellate stage.

The appellate Court while rejecting the amendment application of the petitioner has observed that if the amendment is allowed, the nature of the case will be changed as there is contradictions in his written statement. I have gone through the order impugned and find that there is no illegality or infirmity in it. I have also gone through the case laws cited by the learned counsel for the petitioners and find that they are not applicable in the facts and circumstances of the present case.

After considering the objection of respondent no.1, the appellate Court vide its order dated 5.8.2010 rejected the amendment application of the petitioner which has given cause for filing the present writ petition.

Learned counsel for the petitioner submits that respondent no.1 had not given the details as to how many shops and residential rooms were there in the house in question and who were the tenants.

He also submits that the amendments sought by amendment application dated 17.8.2009 are essential for proper adjudication of the controversy and as such it can be allowed at any stage and in particular no hyper technical view can be adopted by the appellate court in allowing the amendment application under Order 6 Rule 17 C.P.C. In support of this contention, he has placed reliance upon the decision rendered in Sushil Kumar Jain versus Manoj Kumar and another, 2009(2) CRC250 SC.

He further submits that the impugned order dated 5.8.2010 has been passed on baseless and hyper technical grounds inasmuch as the petitioner is not withdrawing his earlier admissions in written statement by amendment application dated 17.8.209 and that there is no contradictions in the written statement; that there is no such finding and any discussion in the impugned order by the appellate court as to how there is contradiction in the written statement of the petitioner and his amendment application as well as also as to how the petitioner is withdrawing his earlier admission by amendment application, hence the impugned order dated 5.8.2010 is liable to be quashed by this Court.

In support of the aforesaid contentions, learned counsel for the petitioner has placed reliance upon the judgments rendered in Sushil Kumar Jain versus Manoj Kumar and another, ( 2009 (2) CRC250 and Vidyabai and others versus Padmalatha and another, (2009 (1) CRC254.

After hearing the counsel and on perusal of record it appears that the petitioner in paragraph nos. 19 to 24 of his written statement has specifically raised the question that landlord has not disclosed the details as to how many shops are owned by him in Building No. 481139A situate in Mohalla Misir Pokhra and who are in possession of those shops and the residential portion of the said house, though some details of tenants have been given in paragraphs 19 to 24 of the written statement. Paragraphs 19 to 24 are thus:

It appears from the record that by the aforesaid amendment application the petitioner wanted to give details of the total shops and tenants and other residential rooms along with the rent of the house in question by adding a new paragraph but also introduce a plea that since total rent of the building from the tenant is Rs. 5199/ per month being more than Rs. 2000/, the provisions of Act No. 13 of 1972 would not apply. This plea that Act would not apply was not taken by him in his written statement. The contention of the learned counsel for the petitioner that if the total rent of the building is taken into consideration, it will go beyond the purview of Act No. 13 of 1972 appears to be misconceived. Needless to say that if the rent of the accommodation under the tenancy is to be taken for consideration for the purposes of determination as to whether the accommodation in possession of the petitioner is beyond the purview of U.P. Act No. 13 of 1972 or not, total accumulated rent of a building in which there are so many tenants. It is clear from above that by the proposed amendment the nature of the case will be changed and it cannot be permitted to be incorporated at the appellate stage.

For the reasons stated above, the writ petition is dismissed. No order as to costs.