Sh. Subhash Chander vs Shri Amar Singh Chauhan
2012 Latest Caselaw 4301 Del

*              THE HIGH COURT OF DELHI AT NEW DELHI

+                         C.M.(M) No. 417/2012

                                                Date of Decision: 20.07.2012

Sh. Subhash Chander                                      ...... Petitioner

                          Through:     Mr. Daljinder Singh, Advocate.

                                    Versus

Shri Amar singh Chauhan                              ...... Respondent

                          Through:     Mr. A.N. Sharma, Advocate.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. This petition under Article 227 of the Constitution of India has been filed by the petitioner assailing the order dated 18.1.2012 of Additional Rent Controller Tribunal whereby the appeal against the order dated 21.5.2010 of Additional Rent Controller allowing application U/O 6 rule 17 CPC of the respondent/landlord, was dismissed.

2. In the petition filed by the respondent U/s 14 (1) (e) of the Delhi Rent Control Act, the petitioner was granted leave to defend by the ARC vide order dated 24.07.2003. The respondent filed application U/O 6 Rule 17 CPC seeking amendment in paras 8, 13 and 20 of the petition. The brief reasons for seeking amendment as set up in the application and as noted by the ARC in his order were that the description of the property and the

assessment of house tax had not been correctly given in the petition and the respondent wanted to amend the petition by adding "Two verandas in front of those rooms" before the word "kitchen" in para 8 of the petition and by adding the words "situated on the ground floor shown as RED in the site plan attached" after the words "open space" and by adding the line "with facility of common use of court yard, passage and stairs on the ground floor and one latrine on the first floor as shown "YELLOW" in the site plan attached" in the same para i.e. para 8. The petitioner wants to amend para 13 by stating that the tenanted premises are not separately assessed for the purposes of house tax, rather the entire property is assessed to house tax purposes as per MCD records and now house tax is fixed as per unit area system from the assessment year 2003-2004 onwards. He wants to carry on the consequential amendment in para 20 i.e. prayer clause of the petition also.

3. The Learned ARC allowed the application against cost of Rs.2500/-. The petitioner/tenant carried the matter in appeal before the ARCT, who dismissed the appeal vide the impugned order and thereby maintained the order of ARC. This order of the ARCT is assailed in the instant petition.

4. The foremost contention of the learned counsel for the petitioner is that the petition was filed in the year 2002 and the amendment was sought after a long period of seven year, when the case was at the stage of trial. It was submitted that the respondent knew from the beginning that his site plan was not correct and despite that he has slept over the matter for a

considerable time and has now chosen to seek amendment at this stage, when the period of seeking amendment has already expired as per proviso to Order 6 Rule 17 CPC. The learned counsel submits that the amendment was being sought in routine, without any justification, and allowing the amendments at this stage, was to cause prejudice to the petitioner. The learned counsel relies upon these cases:-

1) Chander Kanta Bansal Vs. Rajinder Singh Anand 149 (2008) DLT 253 (SC)

2) Ajendraprasadji N. Pande & Anr. V. Swami Keshavprakeshdasji N. & Ors. AIR 2007 SC 806

3) Kailash Vs. Nanhku and ors AIR 2005 SC 2441.

5. On the other hand, the learned counsel appearing for the respondent submits that the amendments which are sought are nothing but explanatory and clarificatory of the pleadings of the plaint and no new fact was sought to be added or incorporated. Learned counsel relies upon the case of Ram Chandar Vs. Sevak Ram 2007 (6) SCC.

6. There is no dispute to the proposition of law as laid down in the catena of judgments including those cited by the learned counsel for the petitioner that it was with a view to shorten the litigation and speed up the trial of cases, that Rule 17 was omitted and a proviso to Rule 16 was added. As per Chander Kanta Bansal (Supra) the entire object of the said amendment is to stall filing of applications for amending a pleading subsequent to the commencement of trial, to avoid surprises and to ensure that parties had sufficient knowledge of the others case. It was held that

though it essentially helps in checking the delays in filing the applications, however, an exception is made in the newly added proviso; that where it is shown that in spite of due diligence, a party could not raise a plea, it is for the court to consider the same. Therefore, it is not a complete bar, nor shuts out entertaining of any later application of amendment after commencement of trial. This will all depend upon the facts and circumstances of each case as to whether despite due diligence, a party could not have raised the matter before the commencement of trial.

7. In case of Ajendraprasadji N. Pande & Anr. (supra) also, similar principles of law regarding amendments sought after the commencement of trial, are reiterated. However, in the given facts of that case, since the amendments sought to be introduced in the written statement were new and inconsistent to the case and thereby caused serious prejudice to the plaintiff, the same were disallowed. In the case of Kailash Vs. Nanhku (supra) also, it was held that extension of time beyond 90 days for filing written statement could not be granted just as a matter of routine and merely for the asking and that, the discretion was to be exercised judiciously in condoning the long delay. This case related to filing of written statement after the period of 90 days stipulated under Order 8 Rule 1 CPC and it was held that the discretion to extend the period beyond 90 days must not be understood as nullifying the entire force and impact of the provision contained under Order 8 Rule 1 CPC. Deriving the strength from these observations, the learned counsel for the petitioner submitted that on the same analogy, the amendment could not be allowed in the petition after the commencement of trial as per the mandate of proviso to Rule 17 of Order 6 CPC.

8. It is noted above that there is no complete bar nor the court is powerless to entertain an application for amendment after the commencement of trial and this would all depend upon the facts and circumstances of each case as to whether in the given case, the discretion could be exercised to entertain request for amendment after the commencement of trial.

9. Further, it is also settled proposition of law that this court in exercise of its powers under Article 227 of the Constitution shall not obstruct or disturb the findings of courts below in case there was no perversity or illegality leading to miscarriage of justice. Having noted above the nature of amendments which are sought by the respondents in the petition, it would be noticed that the amendments are explanatory and clarificatory of the pleadings as also the site plan. No doubt, it the respondent had been vigilant and little more responsible, he would have sought these amendments before the commencement of trial. I do not see any infirmity or illegality in the exercise of discretion by the Additional Rent Controller as also by the Appellate Rent Control Tribunal in allowing the amendments sought by the respondent in the petition by making a provision of payment of compensatory cost to the petitioner. The petition thus has no merit and is hereby dismissed.

M.L. MEHTA, J.

JULY 20 , 2012 pkv