By means of present writ petition the petitioner has challenge the order dated 8.12.2009 passed by respondent no.1 District Judge, Hardoi passed in Rent Appeal No.6 of 2006, Ashok Kumar Gupta Vs. Laxmi Prakash Gupta, thereby rejecting the petitioner's application for amendment. Heard Sri Anurag Narain, learned counsel for the petitioner and Sri R. N. Tilhari, learned counsel for the respondent.
The facts in brief as submitted by Anurag Narain, learned counsel for the petitioner are that initially a release application under Section 21 of the U.P. Urban Building Regulating & Eviction Act was moved by the respondent no.2/landlord on 13.8.1999 for the release of a shop, which is in the tenancy of the petitioner and on the basis of the same a P.A. Case No.4 of 1999 had registered before the Prescribed Authority, after exchanging of the pleadings and documentary evidence the release application was allowed by the Prescribed Authority by order dated 9.10.2009. The order dated 9.10.2009 was challenged by the petitioner by way of an appeal (Appeal No.6/2006) before the respondent no.1.
Learned counsel for the petitioner further submits that during the pendency of the appeal the respondent no.2 has filed a Regular Suit No.755 of 2008 for permanent injunction and in view of the said facts stated therein which are subsequent event taken place after the filing of appeal in the interest of justice it is necessary to move an application under Order 6 Rule 17 for bringing certain facts, which are necessary for the disposal of the appeal, which is pending before the respondent no.1. He further submits that in the release application respondent no.2 had stated that there is a partition between him and his brother whereas in Suit No.755/08 it was admitted by him that there is no partition between him and his brother. As such the said facts are unnecessary to brought by way of amendment so the order passed by the respondent no.1 rejecting the same is illegal and liable to be set aside.
Sri R. N. Tilhari, learned counsel for the respondent on the other hand submits that by way of amendment the facts, which is sought to be brought on record by the tenant petitioner already exist on record and for the said purpose he further submits that from perusal of the averment made in para 2 of the plaint of Suit No.755 of 2008 (annexure no.3 to the writ petition) it is clear that property in question in the suit was already mortgaged and thus the same has got no relevancy whatsoever in respect to the controversy, which is involved in the appeal pending before the respondent no.1.
I have heard learned counsel for the parties and perused the record.
Insofar as the principles which govern the question of granting or disallowing amendments under Order VI, Rule 17, C.P.C. (as it stood at the relevant time) are concerned, these are also well settled. Order VI, Rule 17, C.P.C. postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and others, AIR 1957 SC 363, which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. (see:Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar, (1990) 1 SCC166.
The said view was further reiterated in the case of North Eastern Railway Administration, Gorakhpur Vs. North Eastern Railway Administration, Gorakhpur Bhagwan Das (D) by L.Rs. reported in [2008(3) ARC 911] wherein it has been held that while granting or disallowing the amendment application above stated broad principles to be kept in view while dealing with applications under Order VI, Rule 17 C.P.C.
Now if the above said principles are applied in the present case, the same will be in negative i.e. against the petitioner tenant as in the present case the release application was filed in the year 1999 and the same was allowed by order dated 9.10.2009, thereafter the said order was challenged in appeal before the District Judge, Hardoi in the year 2006 as such from the date of moving of the release application more than ten years have been passed and since filing of appeal three years has passed and the matter in question is lingering on one or other pretext. So I am of the opinion that if the amendment application is allowed as sought by the petitioner tenant at this stage the said action will cause injustice to the landlord respondent.
Further the facts, which were sought to be brought by way of amendment by the tenant petitioner on the alleged ground that there are subsequent event and has taken place after the filing of release application i.e. the fact in respect to the partition on the basis of the Regular Suit No.755 of 2008 filed in the court of Civil Judge (S.D.), Hardoi by the respondent no.2 for permanent injunction and declaration. In this regard the court below while passing the order dated 8.12.2009 had given a categorical finding of fact to the effect that in respect to the facts regarding partition arising out of suit no.755 of 2009 the relevancy of the same will be considered, whether the same are in-contravention to the pleadings as made in the release application or not, at the time of final disposal of the appeal and further the appellate court had also given a finding that the petitioner had sought permission bringing the matter regarding partition which is a subsequent event by way of filing an additional evidence and the same was allowed by order dated 16.7.2007. So in my opinion no injustice is caused to the petitioner by the order dated 9.10.2009 passed by District Judge, Hardoi as such the same does not suffer from any illegality.
Accordingly, the present writ petition filed by the petitioner lacks merit and is dismissed.
No order as to cost.
Order Date :- 11.1.2010 Pramod