Jamal Ahmad vs Aadil Ahmad Khan & Another
2015 Latest Caselaw 1541 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 58
 

 
Civil Petition No. 3811 of 2015
 
Jamal Ahmad
 
Versus
 
Aadil Ahmad Khan and another
 
_______
 
Hon'ble Manoj Kumar Gupta, J.

Heard counsel for the petitioner and Sri H.P. Mishra on behalf of respondents.

The petitioner has invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution in challenging the order dated 8 August 2014 whereby, the Judge, Small Causes, Gorakhpur rejected the application 262 Ga seeking amendment in the written statement in SCC Suit No. 15 of 1998, as well as the order dated 28 April 2015 passed by the Additional District Judge, (E.C. Act), Gorakhpur in SCC Revision No. 30 of 2014, dismissing the revision.

The plaintiff respondents instituted SCC Suit No. 15 of 1998 against the petitioner for recovery of arrears of rent and for ejectment from a shop in the tenancy of the petitioner. According to the plaint case, the land underneath the demised shop belonged to Smt. Anwari Begam, the mother of the plaintiff No. 2. Plaintiff No. 2 with her permission claims to have constructed four shops over the aforesaid land in the month of September 1988, after getting the map sanctioned in the month of May 1988. One of the four shops was let out to the petitioner on 1 October 1988 by plaintiff No. 2 acting on behalf of plaintiff No. 1, who was a minor at that time. The petitioner executed a memorandum on 16 November 1988, containing terms of tenancy. It is alleged that subsequently Smt. Anwari Begam made a gift (Hiba) of the entire land on 25 March 1993 in favour of plaintiff No. 2. According to the plaintiffs, U.P. Act XIII of 1972 is not applicable to the building. The tenancy of the petitioner was terminated by a notice dated 14 July 1997. Thereafter, the suit was instituted in the month of March 1988.

The petitioner contested the suit by filing a written statement. In Paragraph 18 of the written statement, the petitioner clearly admitted that the demised shop was let out to him by plaintiff No. 2. However, it was alleged that while letting out the shop, plaintiff No. 2 never disclosed that its landlord is plaintiff No. 1 and the shop is being let out on his behalf. It is further alleged that the petitioner had never paid any rent to plaintiff No. 1. It is asserted that there was no question of accepting plaintiff No. 1 as the landlord of the shop. The petitioner further alleged in Paragraph 22 to 24 of the written statement that initially, in the month of October 1988, he took on rent from plaintiff No. 2, a room located on the western side of the house, for the purposes of storing goods in connection with his manufacturing business carried out from an adjoining building. Later on, it was agreed between the plaintiff No. 2 and the petitioner that he will vacate the godown and in its place, the plaintiff will construct 4 shops and one of these will be let out to the petitioner. It is alleged that in accordance with the agreement between the parties, the plaintiff No. 2 constructed 4 shops and one of the shops was let out to the petitioner, on rent of Rs. 100/- per month.

In the entire written statement, there is not even a suggestion on behalf of the petitioner that what was demised in his favour, was an open piece of land and not a shop as alleged by the plaintiffs. After the evidence of the parties was completed and the case was at the stage of hearing, the petitioner moved an application for framing additional issues. The said application filed by the petitioner was accepted by the trial Court and additional issues were framed namely issue Nos. 9 & 10. As a result thereof, the petitioner was again afforded opportunity to lead evidence. At this stage, the petitioner again moved an application, this time seeking amendment in the written statement. By means of the amendment, the petitioner seeks to assert that in fact an open piece of land was let out to him and the constructions were raised by the petitioner himself. Consequently, provision of U.P. Act XIII of 1972 would not apply.

The application for amendment was opposed by the plaintiffs. It was asserted that the amendment sought was mala fide; that the petitioner had full knowledge of the pleas which are now sought to be raised and the same should have been incorporated in the written statement in the very beginning. It is submitted that the suit is pending since the year 1998 and the suit is of the nature of Judge, Small Causes, consequently allowing such an amendment would change the entire nature of the defence and would cause serious prejudice to the plaintiffs.

The Judge, Small Causes while rejecting the amendment application has noted that after the evidence of the parties was over and the matter was posted for final hearing, the petitioner moved an application for framing additional issues and which was allowed. It is noted that filing of the amendment application in question in a suit of small causes nature instituted in the year 1998, is wholly mala fide and a deliberate attempt to delay the proceedings of the suit. The trial Court further noted that the nature of the amendment is such that it seeks to withdraw the admission made by the petitioner in the written statement that the demised premises is in the nature of a shop. With these findings, the amendment application has been rejected. The order passed by the Judge, Small Causes has been affirmed by the Revisional Court.

The only submission made by the learned counsel for the petitioner is that the Courts below have erred in rejecting the application merely on the ground that it has been filed with great delay. It is submitted that upon framing of additional issues, the evidence of the parties is going on and as such, the amendment could have been allowed on payment of cost, in case there was likelihood of any prejudice being caused to the plaintiffs.

On the other hand, Sri H.P. Mishra, learned counsel appearing on behalf of the plaintiff respondents submitted that the orders passed by the Courts below are perfectly justified in the facts of the instant case and do not call for any interference in exercise of supervisory jurisdiction under Article 227 of the Constitution.

A perusal of the original pleadings would show that the specific case of the plaintiffs was that the shop was constructed by the plaintiffs themselves and was let out to the petitioner. In the written statement filed by the petitioner, the aforesaid fact was not denied. It was rather admitted that the petitioner is tenant of one of the shops. All that was claimed by the petitioner was that there was no relationship of landlord and tenant between the petitioner and the plaintiff No. 1, as the shop was let out by plaintiff No. 2. In such view of the matter, in case the amendment, if allowed, would change the entire nature of the defence and would amount to withdrawal of the admission made by the petitioner.

The trial Court rightly held that though it is permissible in law to seek an amendment in the written statement explaining the admission, but it is not permissible to raise a plea which would displace the plaintiff completely from the admission made by the defendant in the written statement. The Supreme Court, in the case of Heera Lal Versus Kalyam Mal, 1998 (1) ARC 1 has approved an earlier three Judge Bench judgment in Modi Spinning and Weaving Mills Co. Ltd. Versus Ladha Ram & Co. (1977) 1 SCR 728 in ruling that an amendment which completely displaces the plaintiff's case cannot be allowed. While so holding, there Lordships of the Supreme Court disagreed with decision of a Bench of two Judges in the case of Akshaya Restaurant Versus P. Anjanappa & another (1995) Suppl (2) SCC 303, taking a contrary view. It is observed as under: -

" Consequently it must be held that when the amendment sought in the written statement was of such nature as to displace the plaintiff's case it could not be allowed as ruled by a three member Bench of this Court. This aspect was unfortunately not considered by latter Bench of two learned Judges and to the extent to which the latter decision took a contrary view qua such admission in written statement, it must be held that it was per incuriam being rendered without being given an opportunity to consider the binding decision of a three member Bench of this Court taking a diametrically opposite view."

The effort on part of the petitioner in raising such a plea is to oust the jurisdiction of Judge, Small Causes to try the suit, inasmuch as, a suit for eviction of a tenant from an open piece of land would not be maintainable before Judge, Small Causes. Such a suit is triable by a regular Civil Court. Thus, allowing such an amendment at this stage would totally displace the plaintiffs, and would cause serious prejudice to them. The amendment sought is, wholly mala fide.

In view of the aforesaid discussion, this Court does not find any error in the orders passed by the Courts below.

The petition lacks merit and is dismissed.

(Manoj Kumar Gupta, J.)

Order Date :- 30.7.2015

AM/-