Heard Shri J. P. Mathur, learned counsel for the petitioners and Shri Ravi Shanker Tewari learned counsel appearing for the private respondents no.2 and 3.
Under challenge is the order dated 18.01.2021 passed by the Additional District Judge, Court No.8, Raebareilly in SCC Revision No.3 of 2017 whereby an application for amendment under Order 6 Rule 17 CPC seeking amendment in the written statement filed by the Defendant-petitioners in respect of SCC Suit No.7 of 1987 at the stage of revision against the final judgment, has been rejected.
The learned counsel for the petitioners has assailed the impugned order on two grounds:- (i) it is urged that the court below has committed an error in rejecting an application for amendment; inasmuch as the court concerned was heavily swayed by the proviso appended to Order 6 Rule 17 CPC which has been introduced in the year 2002 and since the suit was of the year 1987, consequently the said proviso was not attracted; (ii) It has also been urged that the delay is no ground to reject an application for amendment and the court below noticing that the application for amendment has been moved after 29 years has committed an error without considering the cause as to whether the amendment was necessary for a just and effectual adjudication of the controversy involved.
The learned counsel for the private respondents has defended the order passed by the court below on the ground that this is nothing but a deliberate attempt of the petitioners to delay the proceedings. It has been pointed out that a suit seeking arrears of rent and ejectment was filed in the year 1987. The defendants have already amended his written statement thrice and all the plea which is now sought to be raised by the proposed amendment has already been taken in the written statement. The defendants had also filed all requisite documents in respect of his plea before the trial court, who after hearing the parties by means of judgment dated 28.11.2016 the suit of the private respondents was decreed. The petitioner thereafter preferred the SCC revision which was registered as SCC Revision No.3 of 2017 and during the pendency of the revision, again the defendant-petitioners moved an application seeking amendment in the written statement on 09.03.2017 which has been rejected by the court below also keeping in mind that this court had expedited the hearing and in order to linger the matter the instant application has been filed.
It is also urged that though the court below has referred to proviso appended to Order 6 Rule 17 CPC but that is not the sole ground on which the application has been rejected. The court below has considered the facts and found that the application has not been moved with a bonafide intent and even in the application for amendment, no cogent reason was given as to why the aforesaid amendment has been initiated and that too after 29 years. It is further submitted that in any case the basic principle upon which an amendment application is to be considered has not been met by the petitioners, consequently the court below has rightly rejected the amendment applications and so also their petition deserves to be dismissed.
The Court has considered the rival submissions and also perused the record.
In order to appreciate the submission of the learned counsel for the respective parties certain brief facts giving rise to the above petition are being noticed first.
The private respondents no.2 and 3 had instituted a suit for arrears of rent and ejectment against the predecessor in interest of the present petitioners. The said suit was registered as SCC Suit No.7 of 1987, a copy of the plaint has been brought on record as annexure no.2. The petitioners filed his written statement, a copy of which has been brought on record as annexure nos.5 and 7. The parties led their respective evidence both oral and documentary and thereafter the SCC Court by means of judgment dated 28.11.2016 decreed the suit.
The petitioners preferred a SCC Revision No.3 of 2017 and thereafter moved an application seeking amendment in the written statement filed in SCC Suit No. 7 of 1987, a copy of the said application for amendment has been brought on record as annexure no.7.
From the perusal of the aforesaid application, it indicates that primarily three amendments were sought by the defendant-petitioners:- (i) It sought to introduce a plea of limitation that in the plaint it was stated that the cause of action accrued for the first time on 01.08.1972 and that the suit came to be filed on 14/15.05.1987. Thus the suit was barred by limitation, hence not maintainable; (ii) With reference to a proceeding initiated by the private respondents before the Rent Control and Eviction Officer, it is sought to be pleaded that in the said proceedings the private respondents had described the petitioners as an unauthorized occupant also reference was also made to proceedings in terms whereof the petitioners had deposited rent in the court under Section 30(1) of the UP Act 13 of 1972 and now in the present case, the petitioners are described as a tenant, which is contradictory to the plea raised by the private respondents in the proceedings before the Rent Control and Eviction Officer; (iii) The other amendment seeks to raise a plea that since the petitioners have been described as an unauthorized occupant, hence the proceedings before the Small Cause Court Act cannot be maintained. Apart from the fact that since the defendants have been in possession of the premises in question, hence they have perfected their rights by adverse possession and this involves an intricate question of title, thus by virtue of Section 23 of the Provincial Small Cause Court Act, the proceedings cannot continue before the Small Cause Court.
It is these proposed amendment which have been rejected by the Revisional Court below.
From the perusal of the impugned order, it appears that the court below has considered the amendment and has noticed that since the application has been moved after 29 years and there is no cogent reason indicated in the application as to why the aforesaid amendment could not be incorporated earlier coupled with the fact that none of the grounds which are proposed to be incorporated relate to any such fact which has come in the knowledge subsequent to the filing of the suit or the decision of the lower court decreeing the suit.
The Court also noticed that the aforesaid plea are legal in nature and therefore can be raised by the petitioners during arguments as well as the fact that since the trial has commenced and in view of the proviso appended to Order 6 Rule 17 CPC. The petitioners have not indicated any due deligence, hence for all the reasons the application has been rejected.
The learned counsel for the petitioners while buttressing his submission has relied upon the decision of this Court reported in 2010 (28) LCD page 582 Smt. Shahjahan Vs. District Judge, Faizabad and others to submit that by virtue of the Amendment Act 2002 which came into effect from 01.07.2002 the proviso appended to Order 6 Rule 17 is not applicable since Section 16(2) of the Amending Act 2002 indicates that the provisions of the proviso of Order 6 Rule 17 incorporated vide the Amending Act 2002 shall not apply to proceedings which have been initiated prior thereto.
It is also urged by Shri Mathur that the law has been clarified by this Court and in view thereof the revisional court below was in error in relying upon the proviso while rejecting the application for amendment purely on the ground that no diligence was indicated by the petitioners.
Shri Mathur has further relied upon the decision of the Apex Court in the case of Andhra Bank Vs. ABN Amro Bank N. V. and others reported in 2007 (25) LCD page 1483 and also in the case of N.C. Bansal Vs. Uttar Pradesh Financial Corporation and another reported in 2018 (36) LCD page 291. On the strength of the aforesaid decisions, it has been urged that the delay cannot be taken as a ground to refuse an amendment. It has further been submitted that the proposed amendments were essential for just and complete adjudication of the controversy as well as to avoid any multiplicity of proceedings. The delay has been caused but the same could have been compensated in terms of cost but rejecting the application for amendment was not proper, hence indulgence of this Court has been sought.
At the very outset, it be noticed that the instant petition has been preferred under Article 227 of the Constitution of India, this Court in exercise of power under Article 227 is primarily concerned that the court below or the Tribunal are kept within the bounds of their authority. The High Court is not vested with unlimited prerogative to correct all kind of hardship or wrong decision made within the limits of jurisdiction by the subordinate court or Tribunal. Exercise of power under Article 227 and interfering with the order of the court or Tribunal is restricted only in cases of serious dereliction of duty and flagrant violation of fundamental principle of law or justice.
This Court while exercising the aforesaid power cannot exercise power of appellate court or substitute its own judgment in place of the subordinate court to correct an error which is not apparent on the face of the record. Only if the court finds that the order is violative of fundamental principles of law or the court has exceeded the bounds of its authority, the Court can interfere but not for merely correcting error.
The law regarding amendment of pleadings is now fairly settled. Amendment in pleadings is to be liberally construed for proper and effective adjudication of controversy between the parties and to avoid multiplicity of judicial proceedings subject to the condition that the amendment should not result in injustice to the other side. It is also equally settled that while considering an application for amendment, the delay and laches on the part of the party would be a determinative factor in allowing or disallowing an application for amendment of pleadings.
This Court is fortified in its view in light of the decision rendered by the Apex Court in the case of Chander Kanta Bansal Vs. Rajinder Singh Anand reported in 2008 (5) SCC page 117 and Revajeetu Builders and Developers Vs. Narayanaswamy and sons and others reported in 2009 (10) SCC page 84 and in the said case of Revajeetu Builders & Developers (supra) in para 63 and 64 it has been held as under:-
"63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:-
(1) Whether the amendment sought is imperative for proper and effective adjudication of the case;
(2) Whether the application for amendment is bona fide or mala fide;
(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;
(6) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as general rule, the court should decline amendments if a fresh application.
These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.
64. The decision on an application made under Order 6 Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications or amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments."
In the backdrop of the aforesaid position of law, if the case at hand is considered, it would indicate that in so far as the present litigation is concerned, it is between landlord against his tenant for eviction and arrears of rent and damages for wrongful use and occupation.
From the perusal of the written statement, it would indicate that in so far as the relationship of landlord and tenant is concerned, the same is not disputed. The record further indicates that the written statement has been amended thrice and possibly all plea which is available has already been taken by the defendant-petitioners. Upon perusing the written statement, this Court finds that there is a reference to the proceedings of the litigation which was initiated before the Rent Control and Eviction Officer. The petitioners in paragraph-24 of the written statement has also raised a plea regarding the jurisdiction of the court to try the proceedings.
From the perusal of the application for amendment, it is admitted case of the petitioners that all evidence in respect of the plea proposed to be taken had already been filed before the trial court. The only ground as mentioned in the application for amendment is that after the decree of eviction was passed by the trial court upon legal advice received from the counsel who preferred the SCC revision, it was felt that though the evidence was filed but in absence of adequate pleadings the same has not been considered.
However, there is no whisper in the aforesaid application as to any bona fide which prevented the petitioner to raise all the defences which are now proposed by the amendment. It is clear that they have not been moved with a bonafide intention. What is sought to be introduced already has been laid before the court concerned including the evidence upon which a decree of eviction has been passed which is under challenge before the revisional court.
The revisional court while rejecting the application for amendment has also permitted the petitioners to argue all the aforesaid point during final hearing. Once the petitioners in their application for amendment state that the documentary evidence in respect of the proposed amendment had already been filed before the court below and now whether it has been considered or not despite pleadings becomes a ground to challenge the judgment before the superior court. The petitioner has already assailed the judgment by filing the SCC Revision before whom the petitioners can very well raise all their arguments that despite some pleadings and evidence the plea has not been considered and needless to say the revisional court has already permitted the petitioners to argue the aforesaid plea.
Though it is true that the amendment cannot be dismissed solely on the ground of delay. In the case of Andhra Bank (supra) the matter was pending before the trial court and the trial had not commenced. In the aforesaid circumstances, though the written statement had been filed and the application for amendment was filed belatedly nevertheless cogent ground was stated and in the aforesaid backdrop the Apex Court held that delay solely cannot defeat an application for amendment. In the present case the delay of 29 years is unexplained nor any reason has been assigned thus latches cannot be permitted to be rewarded in the garb of liberal construction and that too in a suit between landlord and tenant before a court of limited jurisdiction.
In the case of N. C. Bansal (supra) the Apex Court noticed that the suit was at an initial stage after remand of the case and amendment did not change the nature of the suit. The proposition in the aforesaid decisions is also not in quarrel. However, in the fact and circumstances, the decision does not apply; inasmuch as in the instant case the trial has already concluded and the application for amendment has come after 29 years without any cogent explanation and specially when in the application itself it is mentioned that the evidence and the foundation of the pleadings for the aforesaid plea is already on record.
In the case of Shahjahan Begum (supra) this Court by relying upon the decision of the Apex Court in the case of State Bank of Hyderabad Vs. Town Municipal Council reported in 2007 (1) SCC page 765 held that in suits instituted prior to 01.07.2002 the proviso to Order 6 Rule 17 CPC shall not apply. From the impugned order it would reveal that the court below has referred to the proviso but it has not been made as a sole ground to reject the amendment application.
This Court considering the totality of facts and circumstances finds that the amendment sought by the petitioners does not appear to be bona fide nor the latches have been explained regrading the delay of 29 years especially when the plea relating to the said proposed amendment is already present in the written statement and the evidence in this respect was already filed and moreover the attempt to introduce the plea of adverse possession after 29 years of litigating a SCC suit filed in 1987 speaks volumes about petitioners and even otherwise the proposed amendment do not fit the description of real controversy test.
In view of the aforesaid discussions, this Court has no doubt in its mind that the order impugned does not suffer from any error of jurisdiction nor any fundamental principles of law has been violated. Consequently, this Court is not inclined to exercise of its power under Article 227 to intervene. Accordingly, the petition is dismissed.
In the facts and circumstances, there shall be no order as to cost.
11.02.2021 ank/-