Surjan Singh Kukreja vs Narender Kumar Sood & Anr

Jyotsna Rewal Dua, J.

The petitioner is the tenant before the learned Rent Controller. Vide order dated 26.02.2024, petitioner’s application moved under Order 6 Rule 17 read with Section 151 of the Civil Procedure Code seeking amendment of the reply filed by him to the eviction petition, has been dismissed. Feeling aggrieved, the petitioner has taken recourse to the instant revision petition.

Facts

2 (i) The eviction petition was preferred by the respondent No.1 on 21.04.2014. Reply thereto was filed by the present petitioner on 25.02.2015, inter-alia taking following preliminary objection:-

“2. That the petition is malafide and has been filed on absolutely false, frivolous and baseless grounds just with a view to pressurize and coerce the replying respondent to vacate the premises one way or the other. The petitioner, earlier filed the petition on the ground that the demised premises are required for his son Rupin L Sood who was alleged to be unemployed. The petitioner, thereafter amended his petition and took a contrary plea that the premises are required by him and his son Rupin Sood will assist him in the business as he was un-employed. The said order was challenged by the respondent no. 1 before the Hon'ble High Court of Himachal Pradesh, Shimla by filing a Civil Revision no. 4040 of 2013 and seeing the falsity of the case set up by the petitioner, and knowingfully well that his petition would be dismissed, the petitioner on 04-12-2013 withdrew the petition and consequently on 20-01-2014 the same was withdrawn before the Ld. Rent Controller Court No. 1 Shimla, HP. It is submitted that the petitioner failed to withdraw the petition in accordance with the order of the Hon'ble High Court on the next date before the Ld. Rent Controller and also failed to file the same on next date as per order dated 04- 2-2013, as such, the petitioner can not take any benefit of the orders of Hon'ble High Court. Even otherwise the liberty reserved in favour of the petitioner was only limited to the extent of filing a fresh petition, however, same was not granted for filing the fresh petition on same cause of action. The petition, on this score deserves outright dismissal with heavy cost throughout. The petitioner can not also withdraw from the admissions made by him earlier which were supported by his affidavits wherein, he himself is not certain as to what is the need of the petitioner. The petitioner earlier wanted to get the premises vacated occupation of his son Rupin Sood and thereafter he took a plea that the premises are required for his own use and occupation and now the petitioner by filling the present petition wants to start his business of his son Rupin Sood who as per the allegation is going to help him. The inconsistent pleas being taken by the petitioner from time to time clearly shows the malafide intention of the petitioner and his requirement can not, in any manner to be set to be honest, genuine or bonafide. The petitioner has failed to approach this Hon'ble Court with honest intention and with clean hands and is trying to hoodwink this Hon'ble Court just to take undue advantage of law by seeking eviction on false ground. The petition is also barred under Section 18 of the H.P. Urban Rent Control Act in view of the aforementioned facts.”

2(ii) On the basis of pleadings of parties, following issues were framed on 28.07.2015:-

“ 1. Whether the petitioner is entitled to eviction of the respondent from the demised premises on the ground that the same is bonafidely required by the petitioner for his own use and occupation, as alleged? OPP

Whether the petitioner is entitled to eviction of the respondent from the demised premises as the respondent has built his own building known as Sidharth Hotel, with the ground floor having sufficient accommodation for the requirement of respondent, as alleged ? OPP

Whether the petitioner is entitled to eviction of the respondent from the demised premises on the ground that respondents are in arrears of rent and have not made the payment of rent @ 1800/- per month w.e.f 01.03.2011 till date, as alleged? OPP

Whether the present petition is neither competent nor maintainable in the present from, as alleged? OPR

Whether the petitioner has no locus-standi to file the present petition, as alleged? OPR

Whether the present petition is bad for non-joinder and misjoinder of necessary parties, as alleged? OPR

Whether the petitioner is estopped from filing the present petition by their own, acts, deeds and conduct, has not come to the Court with clean hands, as alleged? OPR

Relief.”

Issues so framed included as to ‘whether the landlord is estopped from filing the present petition by his own acts, deeds & conduct and has not come to the Court with clean hands’ as also the issue as to ‘whether the eviction petition is neither competent nor maintainable in the present form’. Burden of proving both these issues was placed upon the tenant (present petitioner), who had taken such objections.

2(iii) The eviction petition reached the stage of recording the evidence. At that stage, the petitioner/tenant moved an application on 10.01.2024 under Order 6 Rule 17 read with Section 151 of Civil Procedure Code seeking amendment of his reply to the eviction petition. The amendment sought for was as under:-

“that the petition is liable to be dismissed under Order 23 Rule 1, 3, 4 of the Code of Civil Procedure. In view of the fact that so called permission obtained by the non-applicant/petitioner from the Hon'ble High Court while withdrawing the earlier petition preferred on the same ground by the petitioner would be deem to have been waived off and given up as the orders passed by the Hon'ble High Court not complied with by the non-applicant/petitioner and as such the petitioner is precluded from instituting the fresh petition with respect to the same subject matter or even part of the claim made in the earlier petition. The petition on this score deserve to be dismissed as the petitioner has already abandoned his claim qua the ground raised in the present petition which was also raised in the earlier petition."

2(iv) Respondent  No.1/landlord  opposed  the  amendment application.

2(v) Upon hearing, learned Rent Controller vide order dated 26.02.2024 dismissed the application. The aforesaid order has been assailed in the instant revision petition.

Submissions.

3(i) While placing reliance upon N.C. Bansal Vs. Uttar Pradesh Financial Corporation, 2018(2) SCC 347, Surender Kumar Sharma Vs. Makhan Singh (2009) 10 SCC 626 and Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited & Anr. AIR 2022 SC 4256. learned counsel for the petitioner/tenant submitted that the impugned order suffers from error in-law and facts. Learned counsel further submitted that the jurisdiction has not been exercised by the learned Rent Controller in accordance with law, which has resulted in miscarriage of the justice and irreparable loss to the petitioner. The amendment sought for was necessary in the given facts & circumstances of the case. It would not have altered the nature of the defence taken by the petitioner. In view of the order passed in the previous eviction petition filed by respondent No.1/landlord, the present eviction petition was not maintainable. The petitioner/tenant had not taken this specific objection in view of Order 23 Rule, 1, 3 & 4 of the Civil Procedure Code in his reply. The amendment was wrongly refused by the learned Rent Controller. In view of law laid down in all three aforesaid judgments, liberal approach was required to have been adopted and the amendment ought to have been allowed.

3(ii) Learned counsel for the respondent No.1/landlord defended the impugned order.

Heard learned counsel for the parties and considered the case record. My observations are as under:-

4(a) Order 6 Rule 17 CPC pertaining to amendment of pleadings reads as under:-

“ Rule 17. Amendment of Pleadings. The Court may at any stage of the proceedings allow either party to alter or amend his pleadings 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 commenced, 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.”

4(b) Reply filed by the petitioner/tenant to the eviction petition on 25.02.2015 makes it evident that the petitioner had already taken pleas about respondent No.1/landlord having instituted previous eviction petition, the order passed thereupon and the consequence thereof. On the basis of reply filed by the petitioner/tenant two specific issues had been framed as to whether respondent No.1/landlord is estopped from filing the present petition by his own acts, deeds & conduct and has not come to the Court with clean hands and as to whether the eviction petition is neither competent nor maintainable in the present form.

4(c) It is not a case where something had come to the knowledge of the petitioner/tenant at any subsequent stage of the case in proximity to the time of moving the application. Petitioner/tenant had been aware of the facts throughout. He had failed to demonstrate the exercise of due diligence in moving the application for amendment of the reply approximately 10 years after filing the original reply. It is well established that discretion to allow an amendment, can be exercised, at any stage, in the interest of justice but the exercise of discretionary power is also governed by judicial consideration also keeping in view the provisions of Order 6 Rule 17 CPC. Moving of an application seeking amendment of the reply filed 10 years ago, on the basis of facts already pleaded in the reply, speaks volumes about lack of diligence on part of the tenant/applicant.

4(d) Learned Rent Controller had also justifiably observed in the impugned order that the objection, which is intended to be incorporated by the petitioner/tenant, by way of amendment to the reply was already taken in the reply and issues thereupon were framed on 28.07.2015. Learned Rent Controller has also observed in the impugned order that previously also the petitioner/tenant had moved an application under Order 6 Rule 17 CPC seeking to frame an additional issue as to whether the petition had been filed with mala-fide intention to evict the tenant (present petitioner) from the demised premises. That amendment was allowed on 23.06.2017. By means of application moved on 10.01.2024 under Order 6 Rule 17 CPC, the petitioner wants to incorporate the provisions of Order 23 Rules, 1, 3 & 4 of the Civil Procedure Code in the reply. In the given facts and circumstances, I am in agreement with the view taken by the learned Rent Controller that the preliminary objections regarding withdrawal of the previous rent petition had already been taken by the petitioner-tenant in his reply to the eviction petition. Therefore, the amendment sought to be incorporated is neither warranted nor necessary.

4(e) Reliance placed upon by the learned counsel for the petitioner on N.C. Bansal vs Uttar Pradesh Financial Corporation (2018) 2 SCC 347 , is of no assistance as in that case, application under Order 6 Rule 17 was allowed for the reasons that (i) The suit was still at the initial stage and the trial had not yet begun, (ii) Such course did not change the nature of the suit and most importantly (iii) The said application could not be said to have been filed by the Plaintiff belatedly. Present case does not fall within the four corners of the afore mentioned categories since the application under Order 6 Rule 17 CPC was moved by the petitioner at the stage of recording of evidence and after a long period of 10 years from the institution of original reply.

Similarly, reliance placed upon Surendra Kumar Sharma vs Makhan Singh (2009) 10 SCC 626; is wholly misconceived for the reason that therein, the Hon'ble Supreme Court clarified the position of law that amendment even if made belatedly should not be refused if it is essential for resolving the dispute between the parties. However, the statutory provisions requiring the party moving for amendment, to cogently explain the delay and its exercise of due diligence, have still to be satisfied which the petitioner herein has failed to do.

Law laid down by the Apex Court in Life Insurance Corporation Of India vs. Sanjeev Builders Private Limited; AIR 2022 SC 4256 would also not be attracted in facts and circumstances of the present case. Hon’ble Apex Court held that the courts must be extremely liberal in granting the prayer for amendment and that the courts are more generous in allowing the amendment of the written statement as question of prejudice is less likely to operate in that event, however, it was concluded that every case and every application for amendment has to be tested in the applicable facts and circumstances of the case. Present is not a case which satisfies the parameters in granting such a relief to the petitioner.

The reasons given by the learned Rent Controller for dismissing the application moved by the petitioner/tenant under Order 6 Rule 17 read with Section 151 CPC seeking amendment of the reply are justified and do not call for any interference.

For the foregoing reasons, I find no merit in the instant revision petition. The same is accordingly dismissed alongwith pending miscellaneous application(s), if any.

The parties, through their learned counsel, are directed to appear before the learned Rent Controller on 20.09.2024. Record of the learned Rent Controller be returned forthwith. Pending miscellaneous application(s), if any, shall also stand disposed of.