Heard counsel for the parties and perused the record.
This writ petition has been filed for a direction in the nature of certiorari for quashing the order dated 21.10.2010 passed by the Additional District and Sessions Judge, Court No.5, Meerut in SCC Revision No. 20 of 2009, Zameel Ahmad versus Mohd. Zeeshan whereby the revision was dismissed by confirming the order dated 23.4.2009 passed by the Judge Small Causes Court, Meerut in Original Suit No. 146 of 2003 by which the amendment application filed by the petitioner was rejected.
Brief facts of the case are that respondent filed SCC Suit No. 146 of 2003,Mohd. Zeesan versus Zamil Ahmad for arrears of rent and eviction against the petitioner tenant before the Court of Judge Small Causes Court, Meerut.
The suit was contested by the petitioner by filing his written statement deying the averments made therein.During the pendency of the suit, the petitioner moved an amendment application under Order 6 Rule 17 of C.P.C. in his written statement. The respondent filed his objection thereto denying the averments made in the objection.
After hearing counsel for the parties and perusal of record, the court below rejected the amendment application of the petitioner vide order dated 23.4.2009. Aggrieved by the order, SCC Revision No. 20 of 2009, Zamil Ahmad versus Mohd. Zeeshan was filed by the petitioner before the Revisional Court i.e. District Judge, Meerut, which too was rejected vide order dated 21.10.2010, hence the instant writ petition has been filed with the aforesaid prayers.
Learned counsel for the petitioner submits that it is settled law that the amendment in the plaint or written statement can be made in the interest of justice at any stage of the suit/proceedings if there is no change by the amendment in the nature of the suit that the trial Court as well as the Revisional Court have committed the manifest error of law and the impugned orders are illegal. It is stated that the trial Court has committed illegality in deciding the amendment application and has also not exercised his jurisdiction fairly vest in it by law as such the orders impugned are liable to be set aside.
He also submits that it is settled principles of law that the Court should be liberal in allowing the amendment application and the court should avoid multiplicity of the proceedings but the trial court has ignored these principles of law and has given incorrect findings against the record that the defendant has not assigned any good reason for allowing the amendment application. It is stated that the petitioner had taken a plea in his amendment application ( paper no. 78-C) that he was quite unaware the facts averred in the amendment application and on legal advise of his counsel he had moved the amendment application but the trial court has not taken this plea in a true sense which is not sustainable in law and is liable to be set aside, therefore, the impugned orders are liable to be quashed in these grounds also.
From the arguments advanced by the counsel for the petitioner and from perusal of record as well as the orders impugned it is apparent that respondent had moved an amendment application under Order VI Rule 17 C.P.C. for incorporating some facts which could not be in his W/s and according to him, were important for decision of the suit. Objections to the amendment application were filed as paper no. 79-Ga by the petitioner denying the averments made in the amendment application interalia that the evidence of the parties and arguments have been concluded on 14.8.2008.
It was also stated that after completion of the trial in view of Order VI Rule 17 C.P.C. as such the amendment application could not be allowed. The respondent had no right to change the nature of the suit by making amendment application and if the amendment sought by the petitioner was allowed, the whole nature of the suit will be changed. The respondent had no right to disown from his previous statement. The suit is pending since 2003, hence the amendment application is liable to be rejected. The Court had fixed 30.8.2008 for delivery of judgment when the said amendment application had been moved.
Order VI Rule 17 C.P.C. for ready reference is quoted below.
" Order VI, Rule 17, CPC. 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 matter before the commencement of trial."
Perusal of Order VI Rule 17 C.P.C. would show that it is in two parts-
(i)the amendment can be made before the conclusion of the trial and ;
(ii)the amendment can be made after the commencement of the trial only after the ingredients of proviso of Order VI Rule 17 of the C.P.C. are satisfied and if the Court is satisfied that the parties could not have raised the matter before the commencement of the trial.
It is not in dispute that evidence of both the parties had been completed and the case was fixed on 30.8.2008 for delivery of judgment. The trial Court has noted in its order that it is apparent from perusal of the amendment application that the amendment which the petitioner wanted to incorporate would change the nature of the suit and that if the amendment application was allowed on completion of the evidence of the parties then the proceedings would relegate to the stage of evidence for proving of the facts in the amendment application.
The trial Court relied upon the decisions rendered in 2008(2) ARC-443 and 2007(2) ARC-190 in which it was held that no amendment application could be allowed where the evidence of the parties had been concluded and the case was fixed for judgment. The trial Court has also noted that it is apparent that even before evidence several adjournment applications were moved by the respondent. Thereafter, the case was fixed for argument and the petitioner had also moved many adjournment applications before his arguments. It is then that when the case was fixed for argument of the petitioner he moved the aforesaid amendment application.
In the instant case, no justifiable and cogent reasons for delay in moving the amendment application have been given after the trial has commenced and concluded. Admittedly, the case of the petitioner is that while his counsel was preparing the case for final hearing it came to his notice that some important facts could not be stated/taken in the written statement, as such he moved the application for amendment. The only reason that has been advanced by the petitioner for moving the amendment application is vague.
In my opinion, the purpose and object of Order VI Rule 17 C.P.C. is to allow the party to alter or amend his pleadings in such terms and conditions as may be just and proper which may not harm or prejudice the other party and the court is satisfied that matter could not have been raised by the party before commencement of the trial. The courts below have come to a finding that facts sought to be incorporated by amendment were in the knowledge of the petitioner and that nature of dispute would materially change. Hence, in these facts and circumstances, the court below has rightly rejected the amendment application. The amendment sought by the petitioner was not necessary for determination of real controversy involved between the parties.
For all the reasons stated above, the writ petition is dismissed. No order as to costs.
Dated 10.2.2011 CPP/-