Heard counsel for the parties and perused the record.
This petition is directed against judgment and order dated 20.8.2010 passed by Additional District Judge, court no. 1, Allahabad, by which amendment application moved by the petitioner tenant has been rejected.
At the time of admission, the following interim order was granted in this case on 27.8.2010 :
"Sri Pramod Kumar Jain, learned senior counsel assisted by Sri Some Narayan Mishra, learned counsel for the petitioner-tenant has submitted that by the impugned order the amendment sought by the petitioner in paragraphs no.35, 36 & 38 of the written statement has been illegally disallowed and submits that the defence taken by the petitioner-tenant in his written statement in the aforesaid paragraphs was sought to be amended by minor amendments and further that in paragraph 38 of the written statement it had been stated that after the death of Harish Chandra @ Sadhu the petitioner-tenant could not pay the rent since it was not clear as to whether the widow of Harish Chandra or the minor daughter of Harish Chandra were entitled to receive the rent. According to him the amendment is an explanation of the defence taken by the petitioner in his written statement and does not amount to change his case at a subsequent stage.
Sri Jain has placed reliance upon a decision of the Hon'ble Supreme Court in the case of 'Sushil Kumar Jain Vs. Manoj Kumar and another' reported in 2009 SCFBRC 19 and places reliance on paragraphs 10 to 13. Paragraphs 10 to 13 are quoted hereunder:-
10. At this stage, we may remind ourselves that law is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering, substituting a new cause of action (See Baldev Singh & Ors. vs. Manohar Singh & Anr. AIR 2006 SC 2832).
11. Similar view has also been expressed in Usha Balashaheb Swami & Ors. Vs. Kiran Appaso Swami & Ors. AIR 2007 SC 1663. It is equally well settled that in the case of an amendment of a written statement, the Courts would be more liberal in allowing than that of a plaint as the question of prejudice would be far less in the former than in the latter and addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement can also be allowed.
12. Keeping these principles in mind, let us now take up the question raised before us by the learned counsel for the parties. As stated herein earlier, the admission made by a defendant in his written statement can be explained by filing the application for amendment of the same. This principle has been settled by this Court in Panchdeo Narain Srivastava Vs. K. Jyoti Sahay AIR 1983 SC 462, while considering this issue, held that the admission made by a party may be withdrawn or may be explained. It was observed in paragraph 3 of the said decision as follows:- "An admission made by a party may be withdrawn or may be explained away. Therefore, it cannot be said that by amendment, an admission of fact cannot be withdrawn.........."
13. In view of our discussions made herein-above and applying the principles laid down by this court in the aforesaid decisions, we are therefore of the view that the High Court as well as the learned Rent Controller had acted illegally and with material irregularity in the exercise of its jurisdiction in not allowing the application for amendment of the written statement of the appellant.
In view of the aforesaid submission, prima-facie the petitioner has made out a case which requires consideration after exchange of affidavits.
In view of the aforesaid circumstances, till the next date of listing further proceedings in Rent Appeal No.91 of 2006, 'Awadh Bihari Lal Vs. Vijay Chandra Gupta & another' pending in the Court of Additional District Judge, Court No.1, Allahabad, shall remain stayed".
The respondent landlord moved an application under section 21(1)(a) of U.P. Act No. 13 of 1972 for release of the shop in question under tenancy of the petitioner. The petitioner tenant contested the case by filing his written statement. The prescribed authority vide its judgment and order dated 17.4.2006 allowed the release application.
Aggrieved the petitioner tenant preferred rent appeal no. 91 of 2006. Thereafter, the respondent landlord moved the High Court by means of Writ Petition No. 67870 of 2009, which was finally disposed of on 14.12.2009 directing the appellate court to decide the appeal within a period of three months from the date of production of certified copy of that order.
It is stated by the counsel for petitioner that the respondent landlord had not made even a whisper about the dispute raised by the heirs of Harish Chandra Gupta alias Sadhu and got the aforesaid mandamus dated 14.12.2009 for expeditious disposal of the appeal.
During pendency of the appeal, the petitioner moved an application for amendment in paragraph nos. 28, 35, 36, 38,39, 40 and 44 of his written statement which has been rejected by the impugned order.
Counsel for the respondent submits that appeal is being listed for final hearing and amendment application has been moved on the ground that at the time of preparation of arguments in the appeal, counsel for the petitioner in the court below had moved it clarifying his written statement. In his objection filed by the respondent landlord, ground was taken that amendment application was belated one and has been filed to delay disposal of the appeal. It was also stated that the High Court had directed for early disposal of the appeal but the petitioner has moved amendment application in utter disregard of the order of the High Court.
The appellate court has rejected the amendment application on the ground that it was filed with malafide intention to delay the hearing of the case.
From the perusal of the amendment application, it appears that it was filed to incorporate the facts which according to the petitioner, could not be brought earlier as the facts had not occurred by then. It is also stated that paragraph no. 29 of the written statement cannot be read separately and has to be read alongwith paragraph nos. 1, 28 and 36 which clear the situation that the petitioner had never admitted the respondent to be exclusive owner and landlord, as such the findings are perverse, against material on record and pleadings of respondent no. 2 and that respondent as landlord or co owner is not receiving the rent since 1987 i.e. the date since when partition had taken place between landlords.
According to the counsel for petitioner, the reason to move amendment application was two fold, firstly to incorporate the pleadings with regard to maintainability of the release application in the changed circumstances and secondly to demolish the alleged bonafide need pleaded by the landlord in his release application under section 21(1)(a) of U.P. Act no. 13 of 1972 which could not be pleaded by him in the written statement and also to clarify his defence.
From the perusal of impugned judgment and order, it is clear that the appellate court has found that the ground on which amendment has been moved, is not bonafide. The contention of the counsel for petitioner that appellate court can consider amendment at any stage of the case, has not been considered by the court below in its correct perspective as appeal is also continuation of the case and Rule 22 (d) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 also permits such amendment does not appear to be correct.
The appellate court has in fact considered the provisions of Order VI Rule 17, C.P.C. read with section 34 of U.P. Act no. 13 of 1972 with rule 22(d) of the aforesaid Rules and has come to the conclusion that all amendments which have been sought by the petitioner, do not in any way help the court in determining the real controversy in dispute and cannot therefore be allowed on the touchstone of legal framework of Order VI Rule 17,C.P.C..
Admittedly, the release application was filed in the year 1994 and the High Court vide its order dated 14.12.2009 had directed the appellate court to decide appeal no. 91 of 2006 within a period of three months from the date of production of certified copy of that order, yet the case is being lingered on, for which counsel for the respondent has claimed that petitioner is responsible as he has sought a number of adjournments on one ground or another. Admittedly also , the amendment application has been moved at the stage of hearing of the appeal and the court below has come to a conclusion that amendment sought for by the petitioner would not help the court in deciding the matter and hence has rightly rejected the amendment application.
In the facts and circumstances stated above, no illegality or infirmity could be shown in the order impugned. The petition is accordingly dismissed. The interim order dated 27.8.2010 is vacated. For the reason that High Court had directed the appellate court to decide the appeal within a period of three months vide order dated 14.12.2009, it is again directed that appellate court shall either decide the appeal on next date of hearing or any other date convenient to it within the time now allowed by this Court even by proceeding on day to day hearing. No order as to costs.
Dt/- 7.3.2011 SNT/