Matter is taken up in the revised list.
None appeared on behalf of the respondents.
Heard Sri Umesh Kumar Srivastava, learned counsel for the petitioners and gone through the record.
By means of the instant petition, the petitioner has challenged order dated 22.07.2008 (Annexure-1) passed by Special Judge (Ayodhya Prakaran)/Additional District Judge, Lucknow.
Facts in brief as submitted by learned counsel for the petitioners are that petitioners moved an application under Section Act 21(1) (a) and 21(1)(b) of the U.P. Urban Building (Regulation of Letting Rent and Eviction) Act No. XIII of 1972, in respect to House No.12A, Station Road, P.S. Hussainganj, District Lucknow on the ground that he is co-owner/landlord of the aforesaid house, in which opposite party no.2 is tenant of one Kothri. Accordingly, P.A. Case No.2 of 2006 registered before the Prescribed Authority/Additional District Judge, Lucknow. After exchange of the pleadings, application under Section 21(1) (a) and (b) of the U.P. Act No. XIII of 1972 allowed by order dated 23.10.2010.
Aggrieved by the same, tenant-respondents filed a Rent Appeal (registered as Rent Appeal No.51 of 2007), during the pendency of same before appellate authority/Additional District Judge, Lucknow/Opposite Party No.1, on 06.02.2008, tenant-respondent moved an application under Section 34(g) read with Rule 22(d)&(f), framed under U.P. Rule XIII of 1972 for amendment of written statement (Annexure-13).
Petitioners-landlord filed their objection on 11.08.2008 (Annexure-14 to the writ petition).
Appellate authority by order dated 22.07.2008 allowed amendment application. Hence, the instant writ petition has been filed.
Sri Umesh Kumar Srivatava, learned counsel for the petitioner while challenging the impugned order dated 22.07.2008 (Annexure-1) submits that the same in contravention to the "Proviso" as provided under Order 6 Rule 17 C.P.C. In order to support his argument, he submits that by way amending Act 22 of 1972 with effect from 01.07.2002, provision of amendment as provided under Order 6 Rule17 C.P.C. brought into force and also a "Proviso" added that no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence, the matter could not be raised before commencement of trial. However, without taking into account the same court below passed impugned order, so impugned order is illegal.
He further submits that no good reasons or ground has been shown by tenant/respondent in order enable him to move amendment application rather the same prejudice, the case of the landlord-petitioner so impugned action on the part appellate authority to allow the same is contrary to law laid down by the Hon'ble Supreme Court as well as by this Court which governs filed in question. Accordingly, order dated 22.07.2008 passed appellate court is liable to be set aside and writ petition be allowed.
I have heard Sri Umesh Kumar Srivastava, learned counsel for the applicant. None present for the respondent and gone through the record.
So far as the factual matrix of the present case is concerned as submitted by Sri Umesh Kumar Srivastava, learned counsel for the petitioners and on the basis of material on record, it is not in dispute that the petitioner is a co-landlord of the disputed premises under tenancy of the opposite party no.2, in respect of the same an application under Section 21(1) (a) and (b) of the U.P. Urban Building (Regulation of Letting Rent and Eviction) Act No. XIII of 1972 moved, allowed by the prescribed authority by order dated 23.10.2007, against the same, tenant filed an appeal. During the pendency of the same an application under Section 34(g) read with Rule 22(d)&(f) of U.P. Rule XIII of 1972, for amendment moved, allowed by appellate authority.
In order to resolve the controversy involved in the present case, it would be appropriate to state the facts regarding the change taken place in the provisions as provided under Order 6 Rule 17 of C.P.C.
A.) The Order 6 Rule 17 CPC as exists before 1999 is quoted as under:-
"Order 6 Rule 17:
"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."
B.) The abovesaid provision was omitted by the Civil Procedure Code (Amendment) Act, 1999 and after amendment reads as follows: -
"16. Amendment of Order 6- in the First Schedule, in Order 6-
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(iii) Rules 17 and 18 shall be omitted."
C.) The provision as it exists now after the Civil Procedure Code (Amendment) Act, 2002.
Order 6 Rule 17 "17. Amendment of pleadings- The Court may at any stage of the proceedings allow either party to alter or amend his pleading 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."
Hon'ble Supreme Court in the case of Raj Kumar Gurwara (Dead) through LRS. Vs. S.K. Sarwagi and Company Private Limited and Another (2008) 14 SCC 364 has considered the above changed in provision of Order 6 Rule17 C.P.C. held as under:-
"Para-12:- In order to consider whether the appellant plaintiff has made out case for amendment of his plaint, it is useful to refer Order 6 Rule 17 CPC which reads as under:-
"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 mater before the commencement of trial."
The first part of the rule makes it abundantly clear that at any stage of the proceedings, parties are free to alter or amend their pleadings as may be necessary for the purpose of determining the real questions in controversy. However, this Rule is subject to proviso appended therein. The said Rule with proviso again substituted by Act 22 of 2002 with effect from 1-7.2002 makes it clear that after the commencement of the trial, no application for amendment shall be allowed. However, if the parties to the proceedings are able to satisfy the court that in spite of due diligence they could not raise the issue before the commencement of trial and the court is satisfied with their explanation, amendment can be allowed even after commencement of the trial.
"Para--13-- To put it clear, Order 6 Rule 17 CPC confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the court to satisfy the conditions prescribed in the proviso.
"Para - 18-- Further it is relevant to point out that in the original suit, the plaintiff prayed for declaration of his exclusive right to do mining operations and to use and sell the suit schedule property and in the petition filed during the course of the arguments, he prayed for recovery of possession and damages from the second defendant. It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order 6 Rule 17 but even duly considered by the High Court and rightly set aside the order dated 10.03.2004 of the Additional District Judge."
In the case of Ravejeetu Builders & Developers Vs. Narayanaswamy & Ors. [(2009) 10 SCC 84] Hon'ble Supreme Court has held as under:-
Para 59:- The other important condition which should govern the discretion of the court is the potentiality of prejudice or injustice which is likely to be caused to the other side. Ordinarily, if the other side is compensated by costs. then there is no injustice but in practice hardly any court grants actual costs to the opposite side. The courts have very wide discretion in the matter of amendment of pleadings but court's powers must be exercised judiciously and with great care.
Para 63:- On critically analyzing 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:
I.) 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;
5.) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case: and
6.) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
Para 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 for 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 view of the aforesaid facts, order dated 22.07.2008 passed by the Appellate Authority in Rent Appeal No.51 of 2007,(Sada Shiv Shukla Vs. Smt. Chandra Kant) allowing amendment application is contrary to law and also prejudice, the case of petitioners/landlord that to at appellate stage, hence, the same is totally against the mandatory provision as provided under Order 6 Rule 17 as exists now after the Civil Procedure Code (Amendment) Act, 2002 so liable to be set aside.
For the foregoing reasons, order dated 22.07.2008 is set aside. Appellate authority is directed to decide Rent Appeal No.51 of 2007, filed by the respondent no.3 expeditiously, say within a period of four months from the date receiving of a certified copy of this order. Till the decision of appeal, the respondent no.3 shall not be evicted from the premises in question.
With the aforesaid observation/direction, writ petition is allowed.
Order Date:-9.3.2011 Akhilesh