Santosh Sawhney (Dead) Through legal Representatives vs Sukhdev Minhas

Lok Pal Singh, J

1) Civil Revision under Section 25 of the Provincial Small Cause Courts Act, 1887, is directed against the order dated 09.01.2014, passed by Judge, Small Cause Courts / III Addl. District Judge, Dehradun, in S.C.C. Suit No. 16 of 2003, Santosh Sawhney vs Sukhdev Minhas, whereby the amendment application (paper no. 131C) for amendment in the plaint of plaintiff / revisionist has been rejected.

2) Heard learned counsel for the parties and perused the entire record.

3) Brief facts of the case are that the plaintiff/ revisionist claiming herself to be the co-owner and landlady of the suit property issued a legal notice through her Advocate on 06.06.2003, stating therein, that she is the co-owner and landlady of the suit property and the respondent is the tenant on behalf of the landlady at the rate of Rs.3,000/- per month. The respondent has admitted the co-ownership and landladyship of the revisionist, but denied the fact of default of rent. Then, the plaintiff / revisionist was constrained to institute S.C.C. suit with the averments that the defendant/respondent, who is the tenant, had failed to pay the arrears of rent and damages and, as such, is liable to be evicted from the suit premises. Suit for decree of ejectment and recovery or rent and damages was filed.

4) Defendant/respondent filed his written statement denying the plaint averments. In para 5 of the written statement it is stated that the provisions of the U.P. Act no. 13 of 1972 are applicable in the case. In fact, defendant is a tenant at the rate of Rs. 500/- per month. However, in para 7, it is stated that the plaintiff has got no authority to terminate the tenancy of the tenant as the plaintiff is not the owner of the suit property. In para 13 of the written statement it is contended that the plaintiff has let out the property to the defendant on false pretext that she is the owner of the suit property, whereof the plaintiff herself was the tenant. When she disconnected the electricity and water connection, then the defendant inspected the records of Municipal Board and came to know that the plaintiff is not the owner of the property, rather the name of one Mr. Nand Lal Sahani is recorded, who is resident of Saharanpur; the plaintiff is merely a custodian of the property, whereof the property being the Nazul property belongs to the State of Uttar Pradesh. It is further contended that State of U.P. has not been impleaded as party respondent in the suit.

5) During the pendency of suit one Mr. Sanjay Sahani s/o late Nand Lal Sahani moved an impleadment application before the trial court contending that he is the co-owner of the suit property, therefore, he may be impleaded as party respondent in the suit. The trial court vide its order dated 10.12.2007, rejected the impleadment application filed by said Sanjay Sahani. Feeling aggrieved, Sanjay Sahani filed Civil Revision no. 16 of 2008 before this Court through Mr. Siddhartha Sah, Advocate. The said revision was finally dismissed by this Court vide judgment and order dated 18.03.2013.

6) The parties adduced their evidence in the suit. The arguments were heard, but the trial court arrived to the conclusion that the point of determination have not been formulated. Thereafter, the trial court fixed the matter on 10.10.2013 and requested learned counsel for the parties to submit their proposed point of determination, fixed 17.l0.2013 for formulating the point of determination. In the meantime, the plaintiff/revisionist moved an amendment application (paper no. 131C), stating therein, that the tenant / defendant has stated that he is the tenant at the rate of Rs.500/- and has submitted few receipts showing that he has paid the rent to Mr. Sanjay Sahani and Rakesh Rajauria, who are the owners and landlords. Defendant has admitted his tenancy in the written statement, but at the same time, he denied the relationship of landlord and tenant in view of the provisions contained in Section 116 of the Evidence Act. The tenant has admitted his tenancy in the written statement. He is estopped to deny the ownership / landladyship of the plaintiff.

7) Section 116 of the Evidence Act is excerpted hereunder:

"116. Estoppel of tenant; and of licensee of person in possession. -No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given."

8) The plaintiff / revisionist sought amendment in the plaint that paragraph nos. 10A, 10B, 10C, 10D and 10E be incorporated in the plaint and in paragraph no. 11, a prayer was made that since the defendant has denied the title, therefore, the plaintiff is entitled to the decree of eviction on this ground. The defendant filed his objection against the amendment application, stating therein, that the amendment application is barred by Order 2 Rule 2 of CPC and the amendment sought is time barred. It is contended that the plaintiff is making the assertion in contravention of the pleadings raised by her, further the amendment is not necessary for proper disposal of the suit since the argument were already heard. However, subsequently, the date was fixed for framing the issues, therefore, the amendment application is liable to be rejected.

9) The trial court vide impugned order dated 09.01.2014 rejected the amendment application on the ground that the amendment sought by the plaintiff is based on defence taken by the defendant, hence it is not permissible in the eyes of law to amend pleadings on the basis of defence taken by adverse party, otherwise the purpose of defence has no consequences. Feeling aggrieved by the same, the plaintiff / revisionist has filed present civil revision.

10) Learned counsel for the revisionist would submit that initially notice was issued terminating the tenancy of tenant / defendant. The landladyship was admitted by the defendant. On filing the suit, the defendant at one place has admitted the landladyship of the petitioner, however, in subsequent paragraph has denied the ownership and landladyship of the petitioner. Learned counsel for the revisionist would further urge that the grounds for rejection of the amendment application given by the trial court are foreign to law. He would submit that since the amendment application was filed seeking clarification of the pleadings and admission was not withdrawn by the plaintiff by means of amendment application, therefore, the learned trial court ought to have allowed the amendment application. He would further submit that no prejudice will be caused if the amendment application would be allowed.

11) On the other hand, learned counsel for the defendant / respondent would submit that the suit was instituted on 21.07.2003; the evidence was adduced by the parties and the arguments were finally heard in the matter, but at the time of dictation of the judgment, the trial court found that the issues have not been framed in the matter. Thus, the trial court itself listed the matter for framing of the issues on 10.10.2013. When the trial court fixed the date for framing of the issues, the plaintiff filed the amendment application. Learned counsel for the respondent would further submits that being the small cause suit in view of Order 14 of CPC, the trial court need not had to frame the issues as the provisions contained in Order 14 of CPC are not applicable in S.C.C. suit. The procedure to decide the SCC suit is referred to in Order 50 of CPC. He would further submit that the trial court even can frame the points of determination at the time of delivery of the judgment and framing of points of determination, as such, the issues are not necessary to be framed. He would further submit that the trial court though has not considered the proviso of Order 6 Rule 17 of CPC, which stipulates that after commencement of the suit, the trial court shall not allow the amendment application unless the party claims the amendment giving explanation for the reasons convince the court the amendment could not be filed before commencement of the trial and the amendment is necessary for adjudication of the case between the parties.

12) Having heard learned counsel for the parties and having gone through the material available on record, this Court finds that the parties led their evidence and arguments were closed, the judgment was reserved. Thus, the trial court ought not to have fixed date for framing of the issues. However, the trial court could have framed point of determination at the time of dictation of the judgment, so that the trial court may address its reasons on the point of determination so formulated at the time of judgment. It is settled position in law that when on the pleadings the parties adduce their evidence, the question of burden of proof loses its significance and the trial court has to consider the preponderance of evidence led by the party and if the issues are not framed the trial court may address its position on the issues so framed.

13) Learned counsel for the defendant/respondent has placed reliance on the following judgments in support of his contention:

Ajendraprasadji N. Pandey Vs Swami Keshavprakeshdasji N, (2006) 12 SCC 01

Vidyabai & others Vs Padmalatha & another, (2009) 2 SCC 409

Andhra Bank Vs ABN Amro Bank N.V. & others, (2007) 6 SCC 167t

Chander Kanta Bansal Vs Rajinder Singh Anand, (2008) 5 SCC 117

Rajkumar Gurawara (Dead) through LRs Vs S.K. Sarwagi & Company Pvt. Ltd. & another, (2008) 14 SCC 364

14) Having considered the ratio of the judgments (supra), this Court is of the view that there is no whisper in the amendment application to satisfy the conditions laid down in the proviso to Order 6 Rule 17 of CPC. Since the revisionist could not satisfy the condition laid down in the proviso to Order 6 Rule 17 of CPC and in view of the dictum of Hon'ble Apex Court in the judgments (supra), this Court is of the firm view that though the trial court has not considered the bar of the proviso to Order 6 Rule 17 of CPC in its order rejecting the amendment application, the reasons assigned by the trial court in rejecting the application though are not satisfactory, but the plaintiff / revisionist could not prove his due diligence of filing the amendment application before commencement of the trial. Further, the amendment sought by the plaintiff / revisionist is not necessary for proper adjudication of the case.

15) In view of the above, this Court has no reason to interfere in the order impugned passed by the court below in rejecting the amendment application.

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

17) Having considered the fact that the suit is pending since 2003, the trial court is directed to decide the suit expeditiously, in accordance with law, and granting of unnecessary adjournments to either of the parties shall be avoided.