Shiv Nath Tiwary vs Jai Narayan Rai

P.K. Sarin, J.—This Civil Revision Petition has been directed against the order dated 12.7.1994 passed by the 4th Subordinate Judge, Bettiah in Rent Suit No. 17 of 1993, rejecting the application for amendment of written statement moved by the petitioner defendant.

It appears that Rent Suit No. 17 of 1993 is pending in the Court of the Subordinate Judge, Bettiah. The suit was filed for recovery of arrears of rent and it was alleged that the agreed rent was Rs. 1500/- per month. It was alleged that although the petitioner defendant vacated the premises in question in September 1992, no payment of rent was made for the period from April 1991, Onward. The copy of the written statement filed as Annexure 2 by the petitioner shows that the petitioner defendant admitted himself to be a tenant oh monthly not stated in paragraph 10 of the written statement that the petitioner-defendant always paid monthly rent in every first week of ensuing month to the plaintiff regularly till November, 1992. The petitioner-defendant moved a petition subsequently to amend his written statement in order to resile from his statement in the written statement that the tenancy was monthly. The petitioner-defendant wanted to substitute the word ''annual'' in place of the word ''monthly'' in the relevant paragraphs where the said word ''monthly'' has been used and also wanted to delete the figure of the amount of rent "Rs. 1500/-" and in its place to substitute "Rs. 300/-". He also wanted to incorporate the date of lease in place of the date mentioned in the relevant paragraphs.

The trial court after hearing the parties rejected the application for amendment of the plaint on the ground that the defendant wanted to make out a new case of annual rent by amending the word ''monthly'' rent. The trial court observed that the alleged mistake was not a clerical and typing mistake and, as such rejected the application on 12.7.1994. Against this order, the present revision petition has been filed by the petitioner-defendant.

Heard learned Counsel for the parties learned Counsel for the petitioner has contended that there was an un-registered deed of lease a copy of which has been filed as Annexure-1 to the petition and this was deposited by the petitioner with the Indian Oil Authorities for the purpose of grant of allotment of oil etc. It is further contended that at the time of drafting of the written statement, photo copy of the lease deed was not available although the petitioner had instructed his counsel regarding the nature and character of the lease deed, but due to rush of work of learned Counsel for the petitioner, clerical mistakes were made at many places in the written statement and the rental was mentioned as Rs. 1500/- instead of Rs. 300/- and instead of the word "annual" the word "monthly" was written it has been contended that the amendment part is based on the alleged lease deed a copy of which has been brought on record as Annexure-1 to this petition and, therefore, the amendment can not be formed as mala fide.

learned Counsel for the petitioner has cited a decision in the case of Panchdeo Narain Srivastava v. Km. Joyti Sahay AIR 1993 SC 462 in support of his contention that an admission made by a party may be withdrawn or may be explained away in the said case, the Supreme Court has held that an admission made by a party may be withdrawn or may be explained away and, therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn, learned Counsel for the petitioner has further contended that the written statement was losely drafted and the court should not scrutinise the pleadings with such meticulous care so as to result in genuine claims being defeated on trivial grounds. In support of his contention on this score, learned Counsel for the petitioner has cited a decision in the case of Madan Gopal Kanodia Vs. Mamraj Maniram and Others, learned Counsel for the petitioner has further cited a decision in the case of Lallan Prasad v. Sri Mangal Prasad 1990 (1) PUR 257. wherein the amendment filed to correct clerical mistake was allowed as no mala fide intention was found. In the said case reference to the decisionof the Supreme Court in the case of Ishwar Dass v. The State of Madhya Pradesh AIR 1979 SC 551 ; Maitreyee Banerjee Vs. Prabir Kumar Mukherjee, and Mulk Raj Batra and Others Vs. District Judge, Dehra Dun and Others, was made for the proposition that amendment of the written statement should be more liberally allowed than that of amendment of plaint. The decision of the Supreme Court in the-case of Jai Jai Ram Manohar Lal Vs. National Building Material Supply Gurgaon, has also been referred to in the said case. In the case of Jai Ram Manohar Lal (Supra), the Supreme Court held that a party should not be allowed to suffer only because of some mistake or negligence on his part. The decision of the Supreme Court in the case of Panchdeo Narain Srivastava (Supra) was also referred to in the said case of Lallan Prasad @ Raghubir Prasad and Others Vs. Sri Mangla Prasad and Others, . Another decision of this Court in the case of Satya Narayan Lal and Others Vs. Smt. Saraswati Devi and Others has also been cited. However, the said case does not appear to be helpful in the matter in question before this Court. In the said case, it was a matter regarding amendment to bring on record the subsequent event.

No doubt, the defendant may be allowed to amend his written statement, if there be any mistake of an admission, but the Court has to be satisfied that the admission which is sought to be resiled from was a mistaken admission and the application for amendment is bona fide. It does not appeer to be a case of clerical mistake as in so many paragraphs of the written statement the consistent case of the defendant-petitioners has been of monthly tenancy. Reference may be made to paragraphs 6, 9, 10, 12, 13, 14, 15, 22 and 23 of the written statement.

In the counter-affidavit filed on behalf of the opposite party in Paragraph 12, it has been stated that the petitioner-defendant has made statement in Paragraph 5 of the show cause in another case, being Case No. 240M/1993 u/s 144 of the Code of Criminal Procedure that he was paying rent as monthly. In Paragraph 13 of the counter affidavit, the opposite party has referred to the statement contained in the application under Order XXXIX, Rule-1 of the CPC moved by the defendant-petitioner in which the petitioner admitted of paying monthly rent regularly. All these facts go to show that on every occasion, the petitioner always mentioned the case of monthly tenancy and subsequent in the present dispute after filing written statement, etc. on a later date he moved the application for amendment in order to change the entire defence to allege that the tenancy was annual and rent was only Rs. 300/- per annum and not Rs. 1500/- per month. Such an application, in the circumstances, cannot be said to be bona fide. After filling of the written statement only short controversy regarding payment of rent in suit remained to be decided. By amendments the defendant sought to completely change his defence in such a manner that not only the controversy regarding payment of rent but the controversy regarding monthly tenancy and the rate of rent would also have to be decided. Order VI, Rule 17 of the CPC shows that only such amendments are to be allowed which are necessary for the decision of the real controversy in suit. The proposed amendment did not appear to be necessary for decision of the real controversy in the suit moreover, the trial court has exercised its desertion in the matter of allowing or not allowing the amendment and it cannot be said to be perverse.

The Supreme Court in the case of Modi Spinning and Weaving Mills Co. Ltd. and Another Vs. Ladha Ram and Co., has held that the amendment introducing entirely different new case and seeking to displace the plaintiff completely from admission made by the defendant in written statement was liable to be disallowed. On the facts of the present case, the law laid down by the Supreme Court in the case of M/s Modi Spinning and Weaving Mills Co. Ltd. (supra) applied to this case. In the circumstances, the trial court does not appear to have committed, any illegality in rejecting the amendment application and it cannot be said to be a case of failure to exercise of jurisdiction vested in the court.

In the result, the Civil Revision Petition has no merit and is dismissed.