Rameshbhai Maganbhai Patel vs Dakshay Kumar Dineshkant Patel

D.G. Karia, J.—This Civil Revision Application is directed against the decision refusing to grant amendment in written statement of the petitioner, who is the original appellant-defendant.

Relevant facts giving rise to the petition may be stated thus:--

Respondent herein is the original plaintiff, who instituted a Regular Civil Suit No. 127/ 89 against thepetitioner herein for recovery of possession of the suit property on the ground that the premises are reasonably and bona fide required by the land lord-plaintiff. After the trial, the decree for possession was passed against the defendant-petitioner, by judgment and decree dated January 30, 1990.

The petitioner being aggrieved by the said eviction decree, preferred Civil Appeal No. 25/90 in the Court pf the District Judge, Kheda. The. petitioner submitted an application in the said appeal at Exh, 37, purporting to be under Order 6, Rule 17 of the Code of Civil Procedure, seeking permission to amend the written statement, which was at Exh. 10 in the suit. The petitioner proposed the written statement to be amended to the effect that the final plot No. 537 admeasuring 840 sq. metres along with 103 sq. metres of Final Plot No. 536 has been leased by the plaintiff-resppndent to the petitioner. Out of the total area of the final plot No. 536, in the area of about 280 sq. metres, there existed, construct-ed property. It was contended that the plaintiff-respondent deliberately omitted to mention about the constructipn of the suit land with a view to bring the case within the scope of Section 13(1)(i) of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947 (for short "the Bombay Act"). The petitioner also Contended that by the proposed amendment, no prejudice Was likely to be caused to the other side, as the proposed amendment would not introduce any new defence. The learned Assistant Judge, Nadiad, who disposed Pf the said amendment application Exh; 37, by his judgment and order dated April 67, 1993, rejected the application Exh. 37, holding that the amendment would have the effect of permitting the defendant to introduce a new defence because the plaintiff has got a decree for eviction u/s 13(1)(i) of the Bombay Rent Act and as such if the defendant-appellant is permitted to amend the written statement, his case was likely to be within the, scope of Section 13(1)(g) of the Bombay Rent Act. The learned Judge also held that the amendment would cause great prejudice to, the, plaintiff who had succeeded in getting the decree for eviction. This Civil Revision Application is filed against the judgment and order rejecting the application Exh. 37 and thereby refusing the amendment.

M. Dhaval C. Dave, learned Advocate appearing for the petitioner, submitted that the learned Judge, by refusing to grant the amendment, had failed to exercise the juris diction vested in him by law, inasmuch as the proppsed amendment would not introduce a new defence and the findings of''the learned Judge in this behalf are contrary to the facts and evidence of the case. Mr. Dave further submitted that by the proposed amendment, the petitioner intended to place on record the relevant facts which were necessary for the purpose of deciding the real issue in con troversy and therefore even if the same had the effect of bringing the case within the scope and purview of Section 13(1)(g) of the Bombay Rent Act, it could not be regarded as a ground for rejecting the application for amendment. Mr. A. J. Patel, the learned Advocate for the respondent, has, on the other hand, supported the impugned judg- ment and order, urging that it would cause prejudice to the plaintiff-respondent, as the proposed amendment would bring altogether a new defence.

Order 6, Rule 17 of the Code of Civil Procedure, 1908 provides that the Court may at any stage pf the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may bejust, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. It is settled law that the amendment which could alter the nature and character of the suit or defence should not be permitted, though the power to allow the amendment may undoubtedly at any stage be appropriately exercised in the interest of justice. However, exercise of such far-reaching discretionary powers is governed by judicial considerations and wider discretions and such powers are to exercised with the care and circumspection. Therefore, in applying this principle, what is to be examined is whether the proposed amendment sought by the petitioner introduces altogether different and inconsistent defence in the written statement.

On perusal of the pleadings, evidence and material on record, if is clear that the facts sought to be brought on record by way of amendment is not pleaded by the petitioner-defendant for the first time. It is the case of the defendant-petitioner that there existed constructions on the land in question and the father of the palintiff, who is examined at Exh. 45, has been cross-examined on this point, wherein he has denied the suggestion that there was construction on the demised land. The defendant in his evidence at Exh. 84 has categorically deposed that there exists a pucca construction wherein the office of the defendant along with telephone and electric power is situate, on the land in question. In para 5 of his eivdence, the petitioner-defendant has categorically stated in the cross-examination that the land in question was leased after construction thereon. A specific ground is also raised in the appeal-memo that on account of the construction on the land in question, the case would be governed by Section 13(1)(g) of the Bombay Rent Act and not by Section 13(1)(i) of the Bombay Rent Act. Under the circumstances, the petitioner-defendant sought to amend his written state-merit. Therefore, in the facts of the case, it cannot be said, by any stretch of reasoning, that the petitioner is introducing altogether a new and inconsistent or different case in his written statement. In my view, the learned Judge has omitted to consider the relevant material on record and has committed an error of law in rejecting the amendment application.

Mr. Dhaval C. Dave, learned Advocate for the petitioner, relied upon the case of Jawarmal Ramkaran Vs. Pari Keshavlal Jamnadas, . It is held therein that on principle, as a general rule, Courts are more liberal in allowing amendment of written statement than in the case of amendment of plaint. This should be so because question of prejudice are less likely to operate with vigour in the case of amendment of written statement than in the case of amendment of plaint. When a new case is sought to be introduced by the plaintiff in the plaint it may cause prejudice to the defendant and several questions including the question of limitation may arise. This is not likely to be the case in case of amendment of written statement. The ratio laid down in Jawarmal Ramkaran Vs. Pari Keshavlal Jamnadas, squarely applies to the facts and circumstances of the case.

In the case of Ganesh Trading Co. Vs. Moji Ram, the Surpeme Court inter alia observed that mere failure to set out even an essential fact does not, by itself, constitute a new cause of action. The Surpeme Court further observed that only if lapse of time has barred the remedy on a newly constituted cause of action that the Courts should, ordinarily, refuse prayers for amendment of pleadings. From the principles laid down by the Supreme Court in the aforesaid decision it becomes evident that for achieving ends of justice even infraction of the rules of procedural law may be ignored. The ultimate end is not to seek compliance of procedure rules, but the objection of the procedure rules is to see that justice is done to the parties.

Mr. A. J. Patel, learned Advocate appearing for the respondent-plaintiff, has placed reliance on the case of Modi Spinning and Weaving Mills Co. Ltd. and Another Vs. Ladha Ram and Co., . The Supreme Court held in that case that application for amendment of written statement by substituting certain paragraphs and thereby introducing entirely different new case and seeking to displace the plaintiff completely from admissions made by defendants in written statement, application for amendment was liable to be rejected. In the facts of this case, the ratio laid down in the case of Modi Spinning and Weaving Mills Co. Ltd. and Another Vs. Ladha Ram and Co., would not be applicable, for in the present case the defendant has made no admission nor has sought to introduce entirely a different or new case. In the instant case, what is sought to be urged by the petitioner is that his case would be within the scope and ambit of Section 13(1)(g) of the Bombay Rent Act, on account of the existing construction on the land in question, and as such the said case was sought to be specifically pleaded by way of amendment in the written statement. It is not a different or new case seeking to disclaim the plaintiff completely. I, therefore, see substance in the submission of Mr." Dave that the learned Judge has exercised the jurisdiction vested in him by law with material illegality and irregularity in refusing to grant the amendment.

In view of the aforesaid discussion, Civil Revision Application is allowed. The impugned judgment and order of the learned Assistant Judge, Nadiad, is quasjied. Application Exh. 37 in Civil Appeal No. 23 of 1990 on the file of the learned Assistant Judge, Kheda at Nadiad, stands granted. Rule is accordingly made absolute with no order as to costs.