Mohammad Akbar vs Shahina Khatoon And 8 Ors
2014 Latest Caselaw 7928 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 30							A.F.R.
 

 
Case :- WRIT - A No. - 55516 of 2014
 

 
Petitioner :- Mohammad Akbar
 
Respondent :- Shahina Khatoon And 8 Ors
 
Counsel for Petitioner :- Mahtab Alam
 

 
Hon'ble Ran Vijai Singh,J.

Heard Sri Mahtab Alam, learned counsel for the petitioner and Ms. Rama Goyal Bansal, learned counsel for the respondents. 

Ms. Rama Goyal Bansal has filed Vakalatnama on behalf of all the respondents which is taken on record.

This writ petition has been filed for issuing a writ of certiorari quashing the order dated 18.9.2014 passed by Additional District Judge, Court No. 2, Bijnore in SCC Revision No. 29 of 2011 (Mohammad Akbar Vs. Shahina Khatoon and Others), by which the petitioner's application no. 80(c), seeking amendment in the written statement, has been rejected on various grounds. 

Learned counsel for the petitioner submits that the court below has erred in rejecting the petitioner's application on the ground of delay.  In his submissions, the court ought to have addressed itself on the merit of the amendment application, instead of throwing the same on the ground of delay.  He also submits that the amendment was necessary for proper adjudication of the matter, therefore, also the court below has erred in passing the impugned order.  In his submissions, the impugned order suffers from non-consideration of the relevant provisions of law as well as facts involved therein.  In support of his submissions, he has placed reliance upon the judgments passed by the Hon'ble Apex Court in Andhra Bank Vs. ABN Amro Bank NV & Others (AIR 2007 SC 2511) and B.K.N. Pillai Vs. P.Pillai (2001 (1) ARC 5).

Refuting the submissions of learned counsel for the petitioner, learned counsel for the respondent submits that the learned court below has not rejected the amendment application only on the ground of delay, but it has also considered the merit of the amendment application.  In her submissions, for allowing the amendment application, the ingredients of proviso to Order 6, Rule 17 of the Code of Civil Procedure, 1908 (in short, 'CPC') has to be satisfied and here, in this case, nothing has been said about not amending the written statement earlier when the suit was pending before the court below or even in revision, which was filed in the year 2011, whereas the amendment has been sought in the year 2014.  She also submits that in the another case, in which the petitioner was defendant, he has admitted this fact that the shop in dispute is outside the purview of U.P. Act No. 13 of 1972, therefore, by way of amendment, the petitioner wants to withdraw his admission, which has been taken note of by the learned court below while deciding the issue no. 2, which was framed for ascertaining as to whether the provisions of U.P. Act No. 13 of 1972 are applicable with respect to the shop in dispute or not.  She also submits that at the revisional stage, amendment in the written statement cannot be sought as the revisional court's jurisdiction is different then the appellate court's jurisdiction.  It is also contended that the petitioner wants to delay the proceedings of the revision as earlier, on 27.5.2014, an amendment application was filed and the same was rejected by the revisional court. Against the afreosaid order, the petitioner has filed Writ A No. 40587 of 2014 (Mohd. Akbar Vs. Smt. Shahina Khatoon and Others) and when the aforesaid case was taken up, learned counsel for the petitioner was not present and no order could be passed by the Court. However, it was observed that the pendency of the writ petition would not mean that there is any stay of impugned order or of the proceedings of the case pending before the court below.

The submission is that this way or that way, the defendant-petitioner is not allowing the court to decide the revision on merit.

I have heard learned counsel for the parties, perused the records and considered their submissions. 

The facts giving rise to this case are that a suit was filed by the respondent against the petitioner impleading him as a defendant before the Judge, Small Causes Court for payment of arrears of rent, taxes and damages for use and occupation of the accommodation in dispute.  The suit was numbered as Suit No. 17 of 2002 (Shahina Khatoon and Others Vs. Mohd. Akbar).  In the suit, the petitioner filed written statement.  After exchange of pleadings, number of issues were framed including issue no. 2, which was with respect to the question as to whether the provisions of U.P. Act No. 13 of 1972 are attracted over the shop in dispute or not.  This issue was decided by holding that the provisions of aforesaid Act are not attracted over the shop in dispute.  The court has also found default in payment of rent, etc. and decreed the suit by directing the defendant-petitioner to vacate the house in dispute after paying the decreetal amount. 

Aggrieved petitioner, filed revision against the judgment and decree dated 12.10.2011, which was numbered as SCC Revision No. 29 of 2011 (Mohammad Akbar Vs. Shahina Khatoon and Others).  In this revision, on 4.9.2014, the petitioner filed an application seeking amendment in the written statement by inserting the following paragraph:

" 1- ;g fd izfrokn i= ds iSjk ua0 16 oha ykbu esa 'kCn "uxj ikfydk" ds ckn bckjr "uxhuk dh ckgjh lhek ls rhu fdyks ehVj nwjh ds vUnj" rgjhj dj fn;k tk;s rFkk 'kCn blh ykbu ls 'kCn "vkSj" dks dyecUn djds mlds Lfkku ij 'kCn "fygktk fookfnr nqdku ij" rgjhj dj fn;k tk;s A"

. Learned Additional District Judge, after going through the record, came to the conclusion that the amendment sought by the petitioner is not maintainable for the reason that the fact, which is sought to be brought through the amendment application, was through out in the notice of the plaintiff and it has no where been stated in the amendment application that in spite of the due diligence, it could not be raised earlier. The court has also noticed that another amendment application dated 27.5.2014 was filed by the petitioner which was rejected. It has also been observed that there is no mention about the requirement as contained under the provisions of Order 6, Rule 17 of the CPC, therefore, taking note of these facts, the revisional court rejected the petitioner's amendment application by the impugned order dated 18.9.2014.

Learned counsel for the petitioner has contended that the petitioner's application has been rejected only on the ground of delay, which is erroneous as the amendment sought ought to have been considered on merit. In support of his submissions, he has placed reliance upon the judgements of the Hon'ble Apex Court in Andhra Bank Vs. ABN Amro Bank NV & Others (AIR 2007 SC 2511) and B.K.N. Pillai Vs. P.Pillai (2001 (1) ARC 5). In Andhra Bank (supra), the Hon'ble Apex Court, while interpreting the provisions of Order 6, Rule 17 of the CPC, has held that the amendment application cannot be rejected on the ground of delay and the court has to address itself on the merit of the amendment sought as to whether the amendment is necessary for decision of the real controversy between the parties.

In this case, as has been noticed in the application filed by the petitioner seeking amendment, it has nowhere been stated that in spite of due diligence, the fact, which is sought to be amended, was not raised, whereas in the plaint, a specific averment was made in para 7 that the provisions of U.P. Act No. 13 of 1972 are not attracted. The reply of para 7 of the plaint has been given in para 16 of the written statement, wherein it has been stated that the provisions of U.P. Act No. 13 of 1972 are applicable. By way of amendment, the petitioner wants to amend the plaint to the extent that the shop in question is situated near Kotwali Dehat, which is within three kms. from Nagar Palika Parishad, Nagina. It has nowhere been stated that the Nagar Palika Parishad, Nagina was notified after filing of the written statement, meaning thereby, the Nagar Palika Parishad was in existence since prior to the date of filing of the plaint as well as on the date of filing of written statement. The suit was filed in the year 2002. The suit was decreed in the year 2011 and the petitioner herein had filed his written statement in the suit on 29.10.2002. From the perusal of the record, it is apparent that for all these years, no effort was made by the petitioner to amend the written statement filed by him. It is after filing of the revision, in the year 2014, the petitioner has sought amendment in the written statement, therefore, in my view, the amendment sought is in teeth of proviso to Order VI, Rule 17 of the CPC.

Learned counsel for the petitioner has placed reliance upon the judgment of the Hon'ble Apex Court in the case of B.K.N. Pillai Vs. P.Pillai (supra), wherein the Hon'ble Apex Court has held that the amendment can be allowed at any stage of the proceeding, provided it is necessary for coming to the just decision. In the case of Andhra Bank Vs. ABN Amro Bank NV (supra), the Hon'ble Apex Court has held that the amendment application cannot be rejected on the ground of delay and the court has to address itself on the merit of the amendment sought, as to whether the amendment is necessary for decision of real controversy in between the parties or not.

Here in this case, the petitioner in a proceeding before the Judge, Small Causes Court with regard to the same premises, has admitted that the shop in question is outside the purview of U.P. Act No. 13 of 1972. Now, by virtue of amendment sought, he wants to withdraw his admission by stating that the shop in dispute is under the purview of the Nagar Palika Parishad, Nagina, the effect of which would be the applicability of the U.P. Act No. 13 of 1972, therefore, the amendment sought is totally unnecessary to decide the real controversy as everything is on record regarding the applicability of the U.P. Act No. 13 of 1972 on the shop in dispute. Therefore, the law laid down by the Apex Court in the cases of B.K.N. Pillai Vs. P.Pillai (supra) and Andhra Bank Vs. ABN Amro Bank NV (supra), are of no help to the petitioner.

The Apex Court in Rajkumar Gurawara (Dead) Vs. M/s S.K. Sarwagi and Co. Pvt. Ltd. and Another (AIR 2008 SC 2303) has held that in case the fact, which is sought to be introduced by way of amendment, was existing since beginning of the proceedings and was not raised earlier, cannot be allowed to be brought through amendment application, unless it is proved that in spite of due deligence, it did not come into the notice of the applicant seeking amendment. Further, in Mashyak Grihnirman Sahakari Sanstha Maryadit Vs. Usmain Habib Dhuka and Others (2013(9) SCC 485), it has been held by the Apex Court that the amendment sought at the belated stage of the proceeding not satisfying the ingredients contained under Order 6, Rule 17 of the Code of Civil Procedure should be rejected.

This Court also on the same line in the case of Smt. Shanti Devi Vs. Subodh Kumar and Another (Civil Revision No. 408 of 2013, decided on 22.10.2013) and Santosh Pal Dublish Vs. Smt. Indu Kumari (Writ A No. 55441 of 2013, decided on 7.10.2013) has held that in case the proviso to Order VI, Rule 17 is not satisfied and the amendment is not necessary for deciding the real controversy in between the parties, the amendment sought should be rejected.

In this case, the amendment has been sought in the written statement at the revisional stage. The scope of revisional court as well as appellate court is altogether different. The revisional court's jurisdiction can be invoked where the court below has exercised its jurisdiction not vested in it by law or has failed to exercise its jurisdiction so vested or has acted in exercise of its jurisdiction illegally with the material irregularities, whereas before the appellate court, the question of fact as well as law, both can be raised and considered. The revisional court, on the basis of the pleadings and evidence available on record has to consider the validity of the order impugned in the revision giving regard as to whether the court has failed to exercise its jurisdiction vested in it or exercise its jurisdiction not vested in it or exercise the same illegally and in material irregularities, therefore, in my considered opinion, before the revisional court, the pleadings of the parties cannot be permitted to be improved by way of amendment, except in very exceptional circumstances.

In view of the foregoing discussions, I do not find any error in the impugned order passed by the court below. The writ petition lacks merit and it is hereby dismissed.

The revisional court is directed to decide the revision expeditiously in accordance with law, without granting any unnecessary adjournments to the learned counsel for the parties. In case any adjournment is sought for, that may only be granted after imposing cost upon the party seeking adjournment with the direction to deposit the cost by the next date fixed.

Order Date :- 31.10.2014

Amit Mishra