IN RE : Civil Misc. Delay Condonation Application No.140955 of 2016.
Heard counsel for both sides.
By this delay condonation application, the applicant has prayed for condonation of 49 days delay in filing the revision under Section 25 of Provincial Small Causes Court Act (hereinafter referred to as the Act) against the order dated 5th February, 2016, passed by Additional District Judge, Court No.4/Judge, Small Causes, Jhansi in SCC Suit No.24 of 2013.
The contention of learned counsel for the revisionist is that there are conflicting views as to whether period of limitation for filing revision under Section 25 of the Act would be 90 days or 30 days and this question has been referred to a larger Bench keeping in mind the observation made by the Apex Court in Uday Bhan Gupta's case in which it was observed that limitation period for filing a revision in the High Court would be 90 days. It has been submitted that under the bona fide belief that the limitation for filing of revision would be 90 days, there has been some delay which is liable to be condoned.
Learned counsel for the caveator-opposite party, does not have any objection in condonation of delay.
In view of the above, this court finds sufficient cause to condone the delay. The delay condonation application is allowed. The delay in filing the revision is condoned. The revision will be assigned regular number unless there is any other defect.
Order Date :- 3.5.2016.
Arvind/-
AFR Court No. - 30 Case :- S.C.C. REVISION DEFECTIVE No. - 99 of 2016 Revisionist :- Azad Chaudhary Opposite Party :- Jai Kumar And 3 Ors.
Counsel for Revisionist :- Arvind Srivastava Counsel for Opposite Party :- Arvind Srivastava, Pushkar Srivastava Hon'ble Manoj Misra,J.
Heard Sri Arvind Srivastava (Adv. Roll No. A/A1243) for the defendant-revisionist and Sri Arvind Srivastava (Adv. Roll No. A/A1244) for the plaintiff-respondents.
This is defendant's revision against the order dated 5.2.2016 passed by Additional District Judge, Court No. 4, Jhansi/ Judge Small Causes Court in SCC Suit No. 24 of 2013. The said order disposes of two applications. One is an application no.62 Ga filed by the defendant revisionist seeking recall of the order dated 29.01.2016 by which the evidence of the defendant was closed; and the other is application no.66 Ga by which the defendant-revisionist sought amendment in the written statement. Application 62 Ga was allowed and order dated 29.01.2016 was recalled whereas application 66 Ga has been rejected. Therefore this revision is confined to the extent it rejects the application 66 Ga.
Facts necessary to understand the controversy in issue are that SCC Suit No. 24 of 2013 was filed by the plaintiff-respondents against the defendant-revisionist for eviction of the defendant-revisionist from a shop, which, according to paragraph no.1 of the plaint, was part of House No. 1915 situated at Shivaji Nagar, Kanpur Road, Jhansi, with its boundaries disclosed at the bottom of the plaint. The plaint case was that the plaintiff-landlords were owner of premises No. 1915 and the defendant-revisionist was tenant of a shop situated therein at the rate of Rs. 1,000/- per month. In paragraph 3 of the plaint, it was pleaded that the premises in dispute was a new construction raised in the year 2004 and was assessed for the first time in the year 2002, therefore, U.P. Act No. 13 of 1972 was not applicable. In paragraph 4 of the plaint it was stated that the tenancy had been terminated by notice dated 20.08.2013, which was served on 20.08.2013 itself to which an incorrect reply was sent on 12.09.2013. A written statement was filed. In paragraphs 1 and 3 of the written statement it was stated that the contents of paragraphs 1 and 3 of the plaint are not accepted and that detailed reply has been given in additional pleas. In the additional pleas of the written statement, in paragraph 10 thereof, it was stated that the defendant is a tenant @ Rs.500 of an unnumbered shop whose boundaries are disclosed at the bottom of the plaint. It was further stated therein that in addition to the plaintiffs, the owner/ landlords of the premises were Kailash Kushwaha, Smt. Kalawati, Smt. Kaushalya, Sunny and Chhotu and that any plea to the contrary was incorrect. In paragraph 14 of the written statement, it was stated that the plea taken in paragraphs 3 and 4 of the plaint was incorrect inasmuch as in the written statement and in the objection filed by the landlord in Original Suit No. 148 of 2013 and in Misc. Case No. 56 of 2013 respectively, it was not specifically pleaded that the construction of the shop was raised for the first time in the year 2006 (2004) and, therefore, the plaintiff-landlords were estopped from taking any such plea which goes contrary to their stand taken in Original Suit No. 148 of 2013 and Misc. Case No. 56 of 2013.
It appears that the case proceeded and statement of the landlord was recorded and a date was fixed for recording of defense evidence on which date the defendant absented therefore the defense evidence was closed by order dated 29.01.2016, which was recalled. Before that, it transpires, an amendment application was filed by the plaintiff-landlords in the month of November 2015 seeking correction in paragraph 3 of the plaint so that in place of 2004 it be recorded as 2002, which was allowed and that order has neither been brought on record nor its validity assailed by the revisionist. In fact, it appears that additional written statement was also filed as would be apparent from paragraph 11 of the affidavit filed in support of stay application.
Thereafter, on 05.02.2016, the defendant-revisionist moved an application 66 Ga seeking amendment in the written statement by way of addition in paragraph 14 of the written statement to the effect that the shop in dispute is not part of House No. 1915 but is separate from the said House and the statement made in paragraph 3 of the plaint is nothing but false. It is this amendment application which the court below rejected by the impugned order.
The court below rejected the amendment application on the ground that the said amendment takes away the admission made by the defendant-revisionist in his written statement inasmuch as in the written statement, as originally filed, it was not specifically denied that the shop in dispute was part and parcel of House No. 1915 and even the boundaries as given in the foot of the plaint was admitted therefore the amendment would cause serious prejudice to the plaintiff, if allowed. While rejecting the amendment application although the trial court did not specifically record any categorical finding that the said amendment prayer was barred by the proviso to Rule 17 of Order VI CPC, as it was being sought after commencement of the trial, but the trial court did notice the submission of the learned counsel for the plaintiff-landlord that the amendment was not permissible after commencement of trial as there was no explanation offered as to why despite due diligence the amendment could not be incorporated before the commencement of trial.
It is not in dispute between the parties that in the instant case, the evidence of the landlord had already been recorded and the case was fixed for recording of evidence of defendant which was closed by order dated 29.01.2016 and thereafter reopened by order on Application 62 Ga.
Ordinarily, the trial commences after framing of issues and, in any case, on recording of evidence of any of the parties to the suit. As the instant suit is before a Small Causes Court, therefore, framing of issues is not obligatory on the Court but since evidence of the plaintiff has admittedly been recorded, therefore, it cannot be said that the trial has not commenced. Under the circumstances, the proviso to Rule 17 of Order VI CPC would become applicable inasmuch as the suit has admittedly been instituted after 1.7.2002.
Learned counsel for the revisionist has submitted that the court below has taken an erroneous view by holding that by the proposed amendment the defendant sought to withdraw admission in the pleading already made because it only seeks an addition in paragraph 14 of the written statement, which is clarificatory in nature and only elaborates the stand taken by the defendant, which is necessary for the purpose of deciding the real controversy between the parties. It has been submitted that allowing the amendment in written statement should not be viewed as strictly as in the case of plaint because it is well settled in law that defendant can even raise conflicting and contradictory pleas to defeat the claim of the plaintiff. It has been submitted that so far as the bar envisaged by the proviso to Rule 17 of Order VI CPC is concerned, there is no specific finding in that regard returned by the court below and since the plaintiff himself had amended the plaint in the year 2015 itself by seeking alteration of the year 2004, mentioned in paragraph 3 of the plaint, to year 2002, the amendment sought by the defendant could not have been denied by the court below. It has been submitted that the amendment, which has been sought does not change the nature of stand taken by the defendant and causes no prejudice to the plaintiff because in paragraph 14 of the written statement already a plea was taken by the defendant that the landlord was estopped from taking a plea that the premises in dispute was out of the purview of U.P. Act No. 13 of 1972 because in the Original Suit No. 148 of 2013 and in Misc. Case No. 56 of 2013 such plea was not taken. It has thus been submitted that the court below committed manifest error of law by rejecting the amendment application which was necessitated for deciding the real controversy between the parties.
Learned counsel for the revisionist placed reliance on the decision of the Apex Court in the case of Basavan Jaggu Dhobi Vs. Sukhnandan Ramdas Chaudhary 1995 Supp (3) SCC 179 so as to contend that amendment cannot be refused merely because it sets up a stand contradictory to which that has already been taken because it is open to the defendant to take even contradictory stand or contradictory stands. He has placed reliance on a decision of the Apex Court in Sushil Kumar Jain Vs. Manoj Kumar and another (2009) 14 SCC 38 so as to contend that the courts ought to be more liberal while considering amendment in a written statement than while considering an amendment in the plaint and amendments which are clarificatory in nature and sought to remove confusion should not ordinarily be rejected. Reliance has also been placed on another decision of the Apex Court in the case of Sumesh Singh Vs. Phoolan Devi and others (2009) 12 SCC 689 so as to contend that where the averments made in the plaint were merely denied in the written statement without anything further and thereafter amendment is sought in the written statement to have a clear stand it would not amount to resiling from the earlier stand and therefore such an amendment ought not to be denied. Reliance has also been placed on a decision of the Apex Court in the case of Pradeep Singhvi and another Vs. Hero Dhankani and others (2004) 13 SCC 432 so as to contend that unless and until the amendment causes serious prejudice to the plaintiff, it should not be denied, particularly if it is necessary for the purpose of determining the real questions in controversy between the parties, because the plaintiff can always lead evidence in rebuttal thereof. Reliance has further been placed on the decision of the Apex Court in the case of Sajjan Kumar Vs. Ram Kishan (2005) 13 SCC 89 so as to contend that where the proposed amendment was necessary for the purpose of bringing to the fore the real question in controversy between the parties, the amendment should not ordinarily be refused even if it could have been sought earlier. Reliance has also been placed on a decision of the Apex Court in Usha Balashaheb Swami and others Vs. Kiran Appaso Swami and others (2007) 5 SCC 602 so as to contend that the amendment can be allowed for explaining an admission and the defendant can also take conflicting/ inconsistent pleas in the written statement.
Learned counsel for the plaintiff-opposite parties has submitted that the decisions which have been cited by the learned counsel for the revisionist are not applicable to the facts of the present case inasmuch as in all those cases question of applicability of the bar under the Proviso to Rule 17 of Order VI CPC was not involved whereas in the instant case, the trial had already commenced and the bar of the proviso to Rule 17 of Order VI CPC was squarely applicable which provides 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 the trial.
It has been submitted on behalf of opposite parties that in the instant case, the plaintiff had taken the plea from the very beginning that the shop in dispute i.e. the shop in occupation of the defendant was part and parcel of House No. 1915, Shivaji Nagar, Kanpur Raod, Jhansi, as disclosed from paragraph 1 of the plaint, and it was also stated that the boundaries of the said house were given at the bottom of the plaint. In paragraph 3 of the plaint again the same position was reiterated. It has been submitted that in the written statement neither in the additional pleas nor in the para wise reply to the plaint there is any denial that the shop in dispute was not part and parcel of House No. 1915, Shivaji Nagar, Kanpur Road, Jhansi. It has been submitted that in paragraph 10 of the written statement, the defendant had himself admitted that he happens to be tenant of the shop, at the rate of Rs. 500/- per month, the boundaries of which have been given at the bottom of the plaint. Meaning thereby that this fact was admitted to the plaintiff that the shop in dispute was part and parcel of House No. 1915. It has been submitted that under the circumstance, taking a plea by way of alleged clarification in the written statement that the shop in dispute was not part and parcel of House No. 1915 did cause serious prejudice to the plaintiff and it actually affects the import of the earlier statement made by the defendant in his pleadings. It has been submitted that since this fact was known to the defendant from the very beginning that the shop in dispute was being claimed as part and parcel of House No. 1915 by the plaintiff, the amendment which has been sought after commencement of the trial cannot be said to be an amendment which could not have been made in spite of exercise of due diligence on his part before the commencement of the trial. It has been submitted that even otherwise there is no whisper in the amendment application which may satisfy the requirement of the proviso to Rule 17 of Order VI CPC.
I have given thoughtful consideration to the submissions of learned counsel for the parties. So far as contention of learned counsel for the revisionist that an amendment can be made in the written statement even to take contrary stand or inconsistent pleas is concerned, there can be no cavil to the said proposition but here the position is different. In this case, the landlord had from the very beginning taken a stand that the shop in dispute was part and parcel of House No. 1915. The defendant was aware of the said plea taken by the plaintiff yet in the written statement that was filed he chose not to deny the aforesaid position rather, in paragraph 10 of the written statement, he admits the position that he is tenant of a shop described at the bottom of the plaint at the rate of Rs. 500/- per month. Meaning thereby that even though it may not have been said in so many words so as to become a clear admission that the property in dispute was part and parcel of House No. 1915, as claimed by the landlord, but, nevertheless, there was no specific denial to the said plea by stating that it was not part and parcel of the said premises as was claimed by the landlord. The amendment application has been filed after recording of statement of the plaintiff-landlord meaning thereby that the amendment was sought after commencement of the trial and, therefore, the rigors of the proviso to Rule 17 of Order VI CPC became applicable.
Interpreting the embargo put by the proviso to Rule 17 of Order VI CPC, the apex court, after examining the law, in the case of Vidyabai v. Padmalatha, (2009) 2 SCC 409, observed, in paragraphs 10, 11 and 19 of the report, as follows:
"10. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), Parliament inter alia inserted a proviso to Order 6 Rule 17 of the Code, which reads as under:
"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."
It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied viz. it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial.
11. From the order passed by the learned trial Judge, it is evident that the respondents had not been able to fulfil the said precondition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination-in-chief of the witness, in our opinion, would amount to "commencement of proceeding".
19. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint."
In the case of J. Samuel v. Gattu Mahesh, (2012) 2 SCC 300, in paragraphs 18, 19 and 20 of the report, the apex court, summarizing the law relating to amendment in the pleadings, observed as follows:
"18. The primary aim of the court is to try the case on its merits and ensure that the rule of justice prevails. For this the need is for the true facts of the case to be placed before the court so that the court has access to all the relevant information in coming to its decision. Therefore, at times it is required to permit parties to amend their plaints. The court's discretion to grant permission for a party to amend his pleading lies on two conditions, firstly, no injustice must be done to the other side and secondly, the amendment must be necessary for the purpose of determining the real question in controversy between the parties. However, to balance the interests of the parties in pursuit of doing justice, the proviso has been added which clearly states 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."
19. Due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient. The term "due diligence" is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial.
20. A party requesting a relief stemming out of a claim is required to exercise due diligence and it is a requirement which cannot be dispensed with. The term "due diligence" determines the scope of a party's constructive knowledge, claim and is very critical to the outcome of the suit."
From the law noticed herein above, it is clear that in suits which have been instituted after insertion of the proviso to Rule 17 of Order VI CPC, where the trial has commenced, the discretion of the court to allow an amendment can be exercised only when 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.
Coming to the facts of the instant case, it is noticed that the evidence of the plaintiff had already closed and, therefore, the trial had commenced and, as admittedly, the suit is of the year 2013, therefore the proviso to Rule 17 would come into play. Now, the question that arises for consideration is whether the defendant revisionist has succeeded in demonstrating that despite due diligence the amendment sought could not have been brought before the commencement of the trial. In the instant case, there is not even a whisper in the amendment application, which is on record, to disclose that despite due diligence the amendment as was being sought in the written statement could not have been sought before the commencement of the trial.
At this stage, learned counsel for the revisionist submitted that the amendment was necessitated by virtue of amendment allowed in the plaint whereby the landlord was permitted to amend paragraph 3 of the plaint so as to make a statement that the accommodation in dispute was constructed in the year 2002 instead of 2004 as recorded earlier. He further submitted that the amendment was necessitated also because the landlord had produced documentary evidence to show that the House No. 1915 was first assessed in the year 2002.
The aforesaid contention of learned counsel for the revisionist does not inspire confidence inasmuch as even if the shop had been constructed in the year 2004, the provisions of the U.P. Act No. 13 of 1972 would not be attracted because the said provisions are not attracted to any building that have been constructed after 26.4.1985. Accordingly, the plea that the amendment in the written statement was necessitated by virtue of the amendment in the plaint cannot be accepted. So far as the contention that the amendment was necessitated because of production of documentary evidence by the plaintiff is concerned, the same also cannot be accepted because the evidence is always to be led consistent with the pleading of the party. The plaintiff-landlord's case from the very beginning had been that the premises in question was part and parcel of House No. 1915 and the said accommodation was out of the purview of the U.P. Act No. 13 of 1972 as it had been constructed in the year 2004 (which was altered by amendment to read 2002), therefore leading of evidence that the building was first assessed in the year 2002 was not a factor which necessitated the amendment because the plea was already there on record that the building was out of purview of the UP Act No.13 of 1972. This court is therefore of the firm view that the amendment sought by the defendant was hit by the proviso to Rule 17 of Order VI CPC therefore its rejection calls for no interference.
The revision is dismissed.
Order Date :- 3.5.2016 Arvind