Anil Kumar vs Radhey Shyam Bhatiya And 2 Others
2017 Latest Caselaw 4050 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment Reserved on : 14.07.2017
 
Judgment Delivered on : 07.09.2017
 
A.F.R.
 

 
Court No. - 2
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 4216 of 2017
 

 
Petitioner :- Anil Kumar
 
Respondent :- Radhey Shyam Bhatiya And 2 Others
 
Counsel for Petitioner :- Pradeep Kumar Rai
 

 
Hon'ble Surya Prakash Kesarwani,J.

1. Heard learned counsel for the petitioner-defendant/ tenant.

2. This writ petition has been filed praying to quash the order dated 25.05.2017 in S.C.C. Case No. 29 of 2015 (Radhey Shyam Bhatiya and others Vs. Anil Kumar) passed by the Additional District Judge, Court No. 1, Muzaffarnagar, whereby, the application under Order VII Rule 11(d) C.P.C. being paper no. 15-C filed by the petitioner-defendant was rejected and the amendment application under Order VI Rule 17 C.P.C. being paper no. 18-C was allowed.

Facts:

3. Briefly stated facts of the present case are that the plaintiffs-respondents are family members who are owners and landlords of shop nos. 124/1 and 124/2, Bhopa Road, Muzaffarnagar of which the defendant-petitioner is the tenant. The plaintiff-respondent no. 3 is the son of the plaintiff-respondent no. 1. The tenancy was created by a registered lease deed for 11 months which fact has been admitted by the defendant-petitioner in para 3 of his written statement. The term of lease as per the lease deed was to expire on 30.06.2015. On account of alleged non payment of rent since August 2014, the plaintiffs-respondents by notice, terminated the tenancy and demanded to hand over vacant and peaceful possession of the disputed shops on 30.06.2015 and also to pay arrears of rent. However, the defendant-petitioner neither vacated the disputed shops nor handed over its vacant possession to the plaintiffs-respondents. Therefore, on 15.07.2015 the plaintiffs-respondents filed S.C.C. Case No. 29 of 2015 (Radhey Shyam Bhatiya and 2 others Vs. Anil Kumar) in the court of Judge, Small Cause mentioning description of the plaintiffs as under:

^^1- ¼,d½] jk/ks';ke HkkfV;k mez yxHkx 49 o"kZ ,.M lal HUF }kjk jk/ks';ke iq= Lo- txUukFk HkkfV;k

2- ¼nks½] Js;ka'k HkkfV;k mez yxHkx 27 o"kZ iq= Jh gjh'k dqekj HkkfV;k

3- ¼rhu½] Jh lkfRod HkkfV;k ukckfyx mez yxHkx 17 o"kZ iq= Jh jk/ks';ke HkkfV;k

leLr fuoklhx.k edku ua- [email protected] ¼lkr lkS fN;klB cVk nl½ xka/kh dkyksuh] eqt¶QjuxjA

-----------oknhx.k^^

4. The defendant-petitioner took objection in para 13 of his written statement dated 07.12.2015 that the plaintiff no. 3 is minor but a next friend as per Order XXXII Rule 1 C.P.C. has not been appointed and therefore, as per Order XXXII Rule 2 C.P.C. the plaint deserves to be taken off the file. On the same day, the defendant-petitioner moved an application dated 07.12.2015 under Order VII Rule 11(d) C.P.C. to reject the plaint being barred by provisions of Order XXXII Rule 1 and Rule 2 C.P.C. Immediately thereafter, the plaintiffs-respondents moved an amendment application dated 05.02.2016 being paper no. 18-C under Order VI Rule 17 read with section 151 C.P.C. for adding in the description of the respondent-plaintiff no. 3 the words ^^}kjk uSlfxZd laj{kd firk jk/ks';ke HkkfV;k [kqn^^ and also to add para 3A after para 3 in the plaint. The defendant-petitioner filed an objection dated 01.04.2016 being paper no. 22-C.

5. The aforesaid application under Order VII Rule 11(d) C.P.C. being paper no. 16-C was rejected and the amendment application of the plaintiffs-respondents being paper no. 18-C was allowed by the impugned order dated 25.05.2017. Aggrieved with this order, the defendant-petitioner has filed the present petition under Article 227 of the Constitution of India.

Submission of the Defendant-petitioner:

6. Learned counsel for the petitioner-defendant/ tenant submits that the application under Order VII Rule 11 (d) C.P.C. was filed on 07.12.2015 on the ground that the plaintiff no. 3 is a minor but the suit has been instituted without the next friend of the minor. Thus, the suit at the instance of minor, was barred by Order XXXII Rule 1 C.P.C. He submits that the amendment application being paper no. 18-C was subsequently filed on 05.02.2016 and as such the court below was legally bound to decide first the application of the petitioner-defendant/ tenant under Order VII Rule 11 (d) C.P.C. He, therefore, submits that once the application under Order VII Rule 11 (d) C.P.C. was filed by the petitioner-defendant/ tenant, no other application could have been decided prior to disposal of the application 16-C which was to be decided on the basis of averments made in the plaint. He submits that bare perusal of the plaint shows that it was barred by Order XXXII Rule 1 C.P.C. and therefore, it was liable to be rejected under Order VII Rule 11 (d) C.P.C. In support of his submissions, learned counsel for the petitioner-defendant/ tenant has relied upon the judgments of this Court in the case of Rakesh Kumar Singh and others Vs. Civil Judge (J.D.), Kaiserganj, Bahraich and others 2017 (134) RD 346; Rajendra Prasad Vs. Additional District Judge and another 2015 (6) AWC 5552 (LB); Central Provident Fund Commissioner, New Delhi and others Vs. Lala J.R. Education Society and others 2017 (135) RD 251; Smt. Dhanwanti and others Vs. State of U.P. and others 2014 (124) RD 593 and judgment of Hon'ble Supreme court in the case of Bhau Ram Vs. Janak Singh and others 2012 (5) AWC 5067.

Discussion and Findings:

7. I have carefully considered the submissions of learned counsels for the petitioner-defendant.

8. Order XXXII Rule 1 and Rule 2 C.P.C. is reproduced below:

"1. Minor to sue by next friend.--Every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor.

[Explanation.--In this Order, "minor" means a person who has not attained his majority within the meaning of section 3 of the Indian Majority Act, 1975 (9 of 1875) where the suit relates to any of the matters mentioned in clauses (a) and (b) of section 2 of that Act or to any other matter.]

2. Where suit is instituted without next friend, plaint to be taken off the file.-- (1) Where a suit is instituted by or on behalf of a minor without a next friend, the defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented.

(2) Notice of such application shall be given to such person, and the Court, after hearing his objections (if any) may make such order in the matter as it thinks fit."

9. Bare reading of the provisions of Order XXXII Rule 1 and Rule 2 C.P.C. makes it clear that these provisions have been made for institution of suit on behalf of minor in order to protect the interest of the minor. There is no dispute that the amendment application 18-C was allowed by the impugned order dated 25.05.2017 which does not suffers from any error of law and the amendment would relate back to the date of filing of the plaint. It is settled law that the amendment allowed by the court below may relate back to the date of filing of the suit. Reference in this regard may be had to the judgments of Hon'ble Supreme Court in the case of Siddalingamma & Anr. Vs. Mamtha Shenoy (2001) 8 SCC 561 (para 10), Vasant Balu Patil & Ors. Vs. Mohan Hirachand Shah & Ors. (2016) 1 SCC 530 (para 16), L.C. Hanumanthappa Vs. H.B. Shivakumar (2016) 1 SCC 332 (paras 9 and 10). There is also no dispute that the amendment has been allowed whereby the suit stands instituted by the plaintiff-respondent no. 3 by the next friend namely his father Sri Radhey Shyam Bhatiya. The amendment so made achieves the very purpose of Order XXXII Rule 1 namely to protect the interest of the minor. The amendment made does not jeopardize the interest of the minor.

10. The judgment of Lucknow Bench of this Court in the case of Rakesh Kumar Singh and Ors. (supra) relied by the defendant-petitioner has no application on the facts of the present case, inasmuch as, in the said case, the court held that if an application under Order VII Rule 11 C.P.C. and an application under Order XXXIX Rule 1 and Rule 2 C.P.C. are pending then the application under Order VII Rule 11 should be decided first. The case of Rajendra Prasad (supra) has also no application on the facts of the present case, inasmuch as, it relates to rejection of amendment application for amendment of plaint at the appellate stage. In the present set of facts, merely written statement has been filed by the defendant-petitioner and evidences are yet to be led. The judgment in the case of Central Provident Fund Commissioner, New Delhi (supra), Bhau Ram (supra) and the judgment in the case of Smt. Dhanwanti and others (supra) relied by the defendant-petitioner also does not help the petitioner, inasmuch as, in those cases it has been held that on an application filed under Order VII Rule 11 C.P.C. the court can only see the pleadings in the plaint and not anything else.

11. Order VI Rule 17 C.P.C. provides for amendment of pleadings. It is settled law that court may, at any stage of proceedings, allow either party to alter or amend its proceedings in such manner and such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real question of controversy between the parties. The rule of conduct of the court in such a case is that, however, negligent or careless may have been the first omission, and however led the proposed amendment, the amendment should be allowed, if it can be made without injustice to the either side. There is no injustice, if the other side can be compensated by cost, but if the amendment will put them into such a position that they must be injured it ought not to be made. Reference in this regard may be had to the judgment of Hon'ble Supreme Court in the case of State of Maharashtra Vs. M/s. Hindustan Construction Co. Ltd. (supra) and the judgment in the case of Klarapede and Co. Vs. Commercial Union Association (1883) 32 WR 262 (C.A.). In the case of Jai Jai Ram Manohar Lal Vs. National Building Material Supply, Gurgaon (1969) 1 SCC 869 (paras 6 & 7) Hon'ble Supreme Court held that the power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations. Rules of procedure are intended to be handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, careless or even infraction of the rules of procedure. The court always gives leave to amend pleadings to a party unless it is satisfied that the party applying was acting malafidely, or that by his blunder he has caused injury to his opponent which cannot be compensated by an order of cost. However, negligent or carelessness may have been the first omission and, however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.

12. It is settled law that pleadings and particulars are required to enable the court to decide true rights of parties in trial. Amendment in pleadings is a matter of procedure. Grant or refusal thereof is discretion of court. However, like any other discretion, such discretion has to be exercised consistent with settled legal principles. Procedural law is intended to facilitate and not to obstruct the courts of substantive justice. Provisions relating to proceeding in civil cases are meant to give each side intimation of the case of the other so that it may be made to enable the courts to determine real issue and to prevent deviations from the course which litigation on particular causes of action must take. Reference in this regard may be had to the judgements of Hon'ble Supreme Court in the case of State of Maharashtra Vs. M/s. Hindustan Construction Co. Ltd. (2010) 4 SCC 518 and Ganesh Trading Company Vs. Moji Ram (1978) 2 SCC 91 (para 2).

13. Thus, the very basis of application 16-C filed by the defendant-petitioner under Order VII Rule 11(d) C.P.C. stands removed. Under the circumstances, the court below has not committed any error of law to reject the application 16-C filed by the defendant-petitioner.

14. Apart from above, Order XXXII Rule 2 C.P.C. provides that where a suit is instituted by or on behalf of a minor without a next friend, the defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented. Sub-rule (2) of Rule 2 provides that notice of such application shall be given to such person, and the Court, after hearing his objections (if any) may make such order in the matter as it thinks fit. There is neither any pleading in the present petition nor any material has been placed on record to indicate that the defendant-petitioner had moved any application under Order XXXII Rule 2 C.P.C. for the plaint to be taken off the file. Under the circumstances, there was no impediment in allowing the amendment application 18-C filed by the plaintiffs-respondents under Order VI Rule 17 C.P.C. so as to protect the interest of the minor namely the plaintiff-respondent no. 3.

15. In the present case, the amendment application has already been allowed and the defect in the description of plaintiff-respondent no. 3 stood cured whereby the interest of the plaintiff-respondent no. 3/ minor stood protected. If the contention of the defendant-petitioner is accepted then it would amount to persuade the court to pass an order to jeopardize the interest of the minor which would be contrary to the purpose sought to be achieved by Rule 1 and Rule 2 of Order XXXII C.P.C.

16. The legal position as discussed above, would clearly show that the court below has not committed any error of law to allow the amendment application 18-C and at the same time to reject the application of the defendant-petitioner being application 16-C. The impugned order dated 25.05.2017 does not suffer from any infirmity. Consequently the petition fails and is, hereby, dismissed.

Order Date :- 07.9.2017

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