Court No. - 07
Case :- MATTERS UNDER ARTICLE 227 No. - 1882 of 2018
Petitioner :- Vinod Kumar And Another Respondent :- Chetan Prakash Verma Counsel for Petitioner :- Pankaj Agarwal
Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri Pankaj Agarwal, learned counsel for the defendants-tenants/ petitioners.
2. This petition has been filed praying for the following relief:
"It is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to call for the records of the court below and set aside the impugned order dated 23.1.2018 passed by learned Special Judge (S.C./ S.T. Act)/ Additional District Judge, Ghaziabad in Rent Control Appeal No.40 of 2012 (Annexure-7 to the instant petition) rejecting amendment application Paper No.71Ga and allow the same; or such other and further order be passed as is expedient in the interest of justice."
3. Undisputedly, the plaintiff-respondent is the owner and landlord of the disputed shop. Following due process of law, he filed an application under Section 21(i)(a) of U.P. Act XIII of 1972 being P.A. Case No.01 of 2007 (Sri Chetan Prakash Verma vs. Vinod Kumar and another) for release of the disputed shop for start of business by his grand-son Amit Kumar Verma, who is said to be an educated unemployed youth and has completed the hardware networking course. It is also stated in the release application that since the aforesaid grandson Amit Kumar Verma is not settled and is unemployed and as such he is not getting married. The defendants-tenants/ petitioners filed written statement. In paragraph-44 of the written statement, the defendants-tenants/ petitioners stated that the plaintiff- landlord has three sons, namely Sri Ram Kumar, Sri Vinod Kumar and Sri Sunil Kumar who are independently doing their individual business and have established their separate business. The parties led their evidences. The aforesaid P.A. Case No.01 of 2007 was allowed by the Prescribed Authority by judgment dated 17.04.2012. Copy of the judgment has not been filed along with this petition. It appears that against the aforesaid judgment, the defendants-tenants/ petitioners filed a Rent Control Appeal No.40 of 2012 (Vinod Kumar vs. Chetan Prakash Verma), which is pending disposal since last six years before the Appellate Court. Copy of the order-sheet of appeal has also not been filed by the defendants- tenants/ petitioners. The defendants-tenants/ petitioners filed an amendment application being paper No.71Ga, which has been rejected by the impugned order dated 23.01.2018. Aggrieved with this order, the defendants-tenants/ petitioners have filed the present petition.
4. Sri Pankaj Agarwal, learned counsel for the defendants-tenants/ petitioners submits as under:
(i) In paragraph-44 of the written submission, details of properties owned by the plaintiff-landlord/ respondent were given. One of those properties has been sold and, therefore, the amendment application was moved for incorporating the necessary amendments in the written statement. This being subsequent event, amendment was necessary but the Appellate Court has committed a manifest error of law to reject the application by the impugned order.
(ii) The amendment sought by the defendants-tenants/ petitioners shall not cause any prejudice to the plaintiff-landlord/ respondent.
5. I have carefully considered submissions of the defendants-tenants/ petitioners and perused the record of the petition before me.
6. The general principles of amendment under Order VI Rule 17 C.P.C. Is that courts at any stage of the proceedings may allow either party to alter or amend the pleadings in such manner and on such terms as may be just and proper and all those amendments must be allowed which are imperative for determining the real question in controversy between the parties. Thus, an amendment of pleadings cannot be allowed so as to alter materially or substitute the cause of action or the nature of claim. The Court always gives relief to amend the pleadings of the party, unless it is satisfied that the party applying for amendment was acting malafidely or that by his blunder he had caused injury to his opponent which cannot be compensated by an order of cost.
7. In the case of Revajeetu Builders and Developers v. Narayanaswamy and Sons and others, (2009) 10 SCC 84 (Paragraph Nos. 35 to 64), Hon'ble Supreme Court referred to the law laid down by it in L.J. Leach & Co. Ltd. v. Jardine Skinner & Co., AIR 1957 SC 357, Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, AIR 1957 SC 363, Purushottam Umedbhai & Co.v. Manilal & Sons, AIR 1961 325, Ganesh Trading Co. v. Moji Ram, (1978)2 SCC 91, Laxmidas Dayabhai Kabrawala v. Nanabhai Chunilal Kabrawala,AIR 1964 SC 11, Jai Jai Ram Manohar Lal v. Natioinal Building Matrial Supply, (1969) 1 SCC 869, Ganga Bai v. Vijay Kumar (1974) 2 SCC 393, Haridas Aildas Thadani
v. Godrej Rustom Kermani (1984) 1 SCC 668, B.K. Narayana Pillai v. Parameswaran Pillai, (2000) 1 SCC 712 and in the case of Suraj Prakash
Bhasin v. Raj Rani Bhasin, (1981) 3 SCC 652 and after emphasizing on the conditions of grant of amendment namely, whether the amendment is necessary to decide real controversy, no prejudice or injustice is caused to the other party and compensation in terms of cost; concluded as under :
Whether amendment is necessary to decide real controversy "58. The first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which should govern the courts' discretion in grant or refusal of the amendment.
No prejudice or injustice to other party
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 22 (1981) 3 SCC 652 other side. Ordinarily, if 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.
60. In Ganga Bai case this Court has rightly observed (SCC p. 399, para 22) "22...The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the court."
(emphasis supplied ) COSTS
61. The Courts have consistently laid down that for unnecessary delay and inconvenience, the opposite party must be compensated with costs. The imposition of costs is an important judicial exercise particularly when the courts deal with the cases of amendment. The costs cannot and should not be imposed arbitrarily. In our view, the following parameters must be taken into consideration while imposing the costs. These factors are illustrative in nature and not exhaustive.
(i) At what stage the amendment was sought.
(ii) While imposing the costs, it should be taken into consideration whether the amendment has been sought at a pre-trial or post-trial stage.
(iii) The financial benefit derived by one party at the cost of other party should be properly calculated in terms of money and the costs be awarded accordingly.
(iv) The imposition of costs should not be symbolic but realistic.
(v) The delay and inconvenience caused to the opposite side must be clearly evaluated in terms of additional and extra court hearings compelling the opposite party to bear the extra costs.
(vi) In case of appeal to higher courts, the victim of amendment is compelled to bear considerable additional costs.
All these aspects must be carefully taken into consideration while awarding the costs.
62. The purpose of imposing costs is to:
a) discourage mala fide amendments designed to delay the legal proceedings;
b) Compensate the other party for the delay and the inconvenience caused;
c) Compensate the other party for avoidable expenses on the litigation which had to be incurred by opposite party for opposing the amendment; and
d) to send a clear message that the parties have to be careful while drafting the original pleadings.
Factors to be taken into consideration while dealing with applications for amendments
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:
(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;
(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.
These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive.
64. The decision on an application made under Order VI 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".
8. In the case of Chander Kanta Bansal Vs. Rajinder Singh Anand Hon'ble Supreme Court considered the meaning of the word "due diligence" used in the proviso to Order VI Rule 17 C.P.C. and held as under:
"15. As discussed above, though first part of Rule 17 makes it clear that amendment of pleadings is permitted at any stage of the proceeding, the proviso imposes certain restrictions. It makes it clear that after the commencement of trial, no application for amendment shall be allowed. However, if it is established that in spite of "due diligence" the party could not have raised the matter before the commencement of trial depending on the circumstances, the court is free to order such application.
16. The words "due diligence" has not been defined in the Code. According to Oxford Dictionary (Edition 2006), the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (Eighth Edition), "diligence" means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. "Due diligence" means the diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain- Dyspnea (Permanent Edition 13A) "due diligence", in law, means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs.
17. It is clear that unless the party takes prompt steps, mere action cannot be accepted and file a petition after the commencement of trial. As mentioned earlier, in the case on hand, the application itself came to be filed only after 18 years and till the death of her first son Sunit Gupta, Chartered Accountant, had not taken any step about the so- called agreement. Even after his death in the year 1998, the petition was filed only in 2004. The explanation offered by the defendant cannot be accepted since she did not mention anything when she was examined as witness.
18. As rightly referred to by the High Court in Union of India Vs. Pramod Gupta this Court cautioned that delay and laches on the part of the parties to the proceedings would also be a relevant factor for allowing or disallowing an application for amendment of the pleadings."
(Emphasis supplied by me) 9- In the case of J. Samuel & others Vs. Gattu Mhesh & others, Hon'ble Supreme Court explained the scope of the words "due diligence" used in proviso to Order VI Rule 17 and held as under:
"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 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.
21. In the given facts, there is a clear lack of `due diligence' and the mistake committed certainly does not come within the preview of a typographical error. The term typographical error is defined as a mistake made in the printed/typed material during a printing/typing process. The term includes errors due to mechanical failure or slips of the hand or finger, but usually excludes errors of ignorance. Therefore the act of neglecting to perform an action which one has an obligation to do cannot be called as a typographical error. As a consequence the plea of typographical error cannot be entertained in this regard since the situation is of lack of due diligence wherein such amendment is impliedly barred under the Code.
22. The claim of typographical error/mistake is baseless and cannot be accepted. In fact, had the person who prepared the plaint, signed and verifiedthe plaint showed some attention, this omission could have been noticed and rectified there itself. In such circumstances, it cannot be construed that due diligence was adhered to and in any event, omission of mandatory requirement running into 3 to 4 sentences cannot be a typographical error as claimed by the plaintiffs. All these aspects have been rightly considered and concluded by the trial court and the High Court has committed an error in accepting the explanation that it was a typographical error to mention and it was an accidental slip.
(Emphasis supplied by me)
10. The amendment application being Paper No.71Ga was filed by the defendants-tenants/ petitioners seeking the following amendment in the written statement:
“/kkjk 44v& ;g fd oknh jsLikUMsUV dk la;qDr fgUnw ifjokj gSA oknh jsLikUMsUV us
,d nqdku ftle s jke dqekj euk st dqekj dk uke l s dk;Z gk srk Fkk ] nkSjku okn jk?ko oekZ o jksgu oekZ iq=x.k uohu dqekj fuoklh gkiqM+ dks fodz; dj fn;k ftldk Kku izfroknh vihykFkhZ dks vHkh gky esa gqvk gS] ftlls fl) gS fd oknh jsLikUMsUV dks dksbZ vko';drk fdlh izdkj dh iz'uxr lEifRr ds lEcU/k esa ugh gS vkSj okn oknh izxfr'khy ugh
gSA ”
11. An objection to the aforesaid amendment application was filed by the plaintiff-landlord/ respondent as under:
“U;k;ky; Lis'ky tt@,l- lh- ,l- Vh- ,DV xkft;kcknA vkj lh ,0 ua0 4 lu 2012 fouksn dqekj cuke psru izdk'k vkifRr Åij izkFkZuki= la'kks/ku vUrxZr vkns'k&6 fu;e&17 o /kkjk 151 lh0ih0lh0 vihykUV fouksn dqekj vksj ls jsLikUMsUV izkFkhZ fuEu izdkj gS %&
1- ;g fd vihykFkhZ us la'kks/ku izkFkZuki= egt vihy dks yfEcr j[kus ds mn~ns'k ls nk;j fd;k gS tks fd dkuwuu dkfcys dk;eh ugh gS vkSj [k.Muh; gSA
2- ;g fd mijksDr vihy esa nksuks i{kks dh cgl ekSf[kd :i ls o fyf[kr :i ls dbZ ckj gks pqdh gS egt vihy dks yfEcr j[kus ds mn~ns'; ls izkFkZuki= fn;k x;k gSA
3- ;g fd vihykUV izfroknh dk ;g vfHkdFku fd jsLikUMsUV dk ifjokj la;qDr ifjokj gS vkSj la;qDr ifjokj ds rgr oknh jsLikUMsUV us ,d nqdku nkSjku okn ftles jke dqekj] eukst dqekj ds uke ls dk;Z gksrk Fkk] jk?ko oekZ o eksgu oekZ dks fodz; dj fn;k gS ftlls fl) gS fd oknh jsLikUMsUV dks iz'uxr nqdku dh dksbZ vko';drk fdlh izdkj dh ugh jgh gS] foydqy fujk/kkj gSA izkFkhZ psru izdk'k dk ifjokj la;qDr ugh gS cfYd mudk ifjokj vyx gS vyx gh mudk O;olk; gS vkSj vyx gh mDr dfFkr lEifRr gS ftldks vihykUV fodz; djuk crkrk gS mlls psru izdk'k dk dksbZ lEcU/k ugh gS pwWfd mDr lEifRr rUgk :i ls jke dqekj iq= psru izdk'k xaxk ekdsZV gkiqM+ ftldh cktkj gkiqM+ es vius ljek;s ls Jherh eqUuh nsoh iRuh jke vorkj ls fnukad 24&3&82 dks dz; dj mles viuk O;olk; jke dqekj o eukst dqekj ds uke ls rUgk :i ls fd;k tkrk jgk gS ysfdu jke dqekj ds csVs dk chekjh o vkfFkZd ijs'kkuh ds dkj.k rFkk chekjh ds dkj.k ¼vksiu gkVZ ltZjh½ mDr nqdku dks fodz; djuk iM+k ftlls izkFkhZ psru izdk'k dh vko';drk ij dksbZ izHkko ugh iM+rk gS pwWfd jke dqekj] eukst dqekj QeZ dh feyfd;r o dkjksckj ls dksbZ lEcU/k u Fkk vkSj u gS] dFku vihykFkhZ blds foijhr xyr vkSj [k.Muh; gSA
4- ;g fd jsLikUMsUV izkFkhZ dh vko';drk ln~Hkkoh] okLrfod ,oa tSfuou gSA
5- ;g fd vihykFkhZ izfroknh dk ;g vfHkdFku fcydqy fujk/kkj gS fd vihy ds nkSjku mDr rF;ks dk vihy esa yk;k tkuk vko';d gS fcydqy fujk/kkj gSA
6- ;g fd mijksDr dkj.kks ds vk/kkj ij izkFkZuki= la'kks/ku [kkfjt gksus ;ksX; gSA vr% izkFkZuk gS fd vkifRr Lohdkj dh tkdj izkFkZuki= la'kks/ku vihykFkhZ@izfroknh [kkfjt Qjek;k tkosA fnukad %& jsLikUMsUV@izkFkhZ }kjk vf/koDrk”
12. Paragraph-44 of the written statement has been specifically referred by learned counsel for the defendants-tenants/ petitioners in his argument, which is reproduced below:
“;g fd izkFkhZ ds rhu iq= Jh jke dqekj o Jh fouksn dqekj o Jh lquhy dqekj gS vkSj izkFkhZ o muds iq=ksa dh fuEufyf[kr izfr"Bku gS tks muds vius futh gSA v- esllZ psru izdk'k lquhy dqekj ¼Lo.kZdkj½ gkiqM+A c- esllZ psru izdk'k lquhy dqekj ¼Lo.kZdkj½ czt?kkVA l- esllZ jke dqekj eukst dqekj ¼Lo.kZdkj½ gkiqM+A n- esllZ fouksn dqekj vfer dqekj ¼Lo.kZdkj½ gkiqM+A mDr izfr"Bkuks ij vyx vyx VsyhQksu vFkok eksckbZy Qksu yxs gq, gSA ”
13. Perusal of aforequoted paragraph-44 of the written statement itself shows that the defendants-tenants/ petitioners themselves have stated that the sons of the plaintiff-landlord/ respondent are doing their own independent business under separate names and styles. The fact that the firm M/s Ram Kumar Manoj Kumar was owned by Sri Ram Kumar son of Chetan Prakash Verma was undisputedly situate in a building which was self acquired property of Sri Ram Kumar Verma who has sold it to arrange money for treatment of his son who underwent an open heart surgery. The plaintiff-landlord/ respondent has not set up the need not for the aforesaid Ram Kumar Verma. He has set up the bona fide need for start of business by his educated and unemployed grandson Sri Amit Kumar Verma son of Sri Vinod Kumar Verma. Once it is the case of the defendants-tenants/ petitioners in paragraph-44 of the written statement that Sri Ram Kumar Verma was doing his independent business, therefore, sale of the self- acquired building by Ram Kumar Verma on account of financial need in the event of serious illness of his son, becomes wholly irrelevant and unrelated for the purposes of deciding the controversy involved in the appeal. The amendment application itself appears to have been filed with malafide intention to somehow delay the disposal of the appeal which is pending before the Appellate Court since last six years. The defendants-tenants/ petitioners have deliberately not filed copy of the final judgment and decree dated 17.04.2012 passed by the court of Civil Judge (Senior Division)/ Prescribed Authority, Hapur in P.A. Case No.01 of 2007 (Chetan Prakash Sharma vs. Vinod Kumar and another) and has also deliberately not filed copy of the order-sheet of the Rent Control Appeal No.40 of 2012 (Vinod Kumar Vs. Chetan Prakash Verma).
14. In view of the facts and legal position as discussed above, I do not find any manifest error of law in the impugned order dated 23.01.2018.
15. In result, the petition fails and is hereby dismissed.
16. Expeditious disposal of rent cases is a statutory mandate as also reflected from Rule 15(3) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972. Therefore, the Appellate Court is requested to decide the Rent Control Appeal No.40 of 2012 (Vinod Kumar Vs. Chetan Prakash Verma) in accordance with law, expeditiously, preferably within three months from the date of presentation of a certified copy of this order, without being influenced by any of the observations made in the body of this order.
Order Date :- 28.03.2018
NLY