Delhi High Court
Hari Chand Aggarwal (Deceased) ... vs M/S Gobind Pershad Jagdish ... on 23 July, 2019
$~45
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 23.07.2019
+ CM(M) 1092/2019 & CM APPL. 32935-32936/2019
HARI CHAND AGGARWAL
(DECEASED) THR LRS ..... Petitioner
Through: Mr. Naveen Kr. Chaudhary,
Advocate with Mr. Kanwal
Chaudhary, Advocate.
versus
M/S GOBIND PERSHAD
JAGDISH PARSHAD & ORS ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE PRATEEK JALAN
PRATEEK JALAN, J. (ORAL)
%
1. The present petition under Article 227 of the Constitution of India
has been filed against an order dated 18.04.2019 passed by the learned
District and Sessions Judge, New Delhi in RCT No. 147/2016 and order
dated 11.08.2015 passed by the Rent Controller in Eviction Petition No.
11/2009. By the order dated 11.08.2015, the Trial Court dismissed the
application of the petitioner herein under Order VI Rule 17 of the Code of
Civil Procedure, 1908 (hereinafter referred to as "the CPC") for amendment
of the written statement filed by him. By the impugned order dated
18.04.2019, the Appellate Court has dismissed the petitioner's appeal
against the order dated 11.08.2015.
2. The eviction proceedings were filed by the respondent no.1 herein in
the year 2003, originally against the father of the petitioner herein. The
original respondent having died in 2012, his legal heirs including the
petitioner were brought on record. In October, 2014, the petitioner filed an
application under Order VI Rule 17 of the CPC for amendment of the
written statement. By this time, evidence had already commenced in the
eviction proceedings.
3. The contention raised by the petitioner in the application was that he
had received a notice from respondent no.5 in the eviction proceedings (Om
Prakash Aggarwal, who is also impleaded in this petition as respondent
no.5) under Order XII Rule 8 of the CPC in response to which certain
documents had been supplied and placed on record by the learned counsel
for the petitioner herein. Those documents were a notice dated 20.05.1952
under Section 22(2) and 38 of the Indian Income Tax Act, 1922 addressed
to M/s Aggarwal Restaurants and an assessment order dated 28.08.1952 in
respect of the said entity. It was contended that the said documents were
neither within the knowledge nor within the possession of the petitioner
herein and had recently come to his knowledge. The petitioner sought an
amendment of the written statement based on these documents.
4. In the original written statement, the respondent no.2 had averred as
follows:-
"5. That the para No.5 of the Petition is correct to the extent
that the Respondent No. 2 is doing the business in the suit
premises. However, it is incorrect that the Respondent Nos. 1
to 4 has unauthorisedly and illegally parted with the
possession of the portion shown in red colour in site plan to
the Respondent No. 5. It is submitted that the Respondent No.5
and Late Shri Raghubir Singh were real brothers and the suit
premises was being used jointly by both the brothers as they
were living together in the joint family. Since the Respondent
No. 5 was doing business alongwith his brother late Shri
Raghubir Singh Aggarwal, hence there is no question of
subletting the part of the premises to Respondent No. 5. After
the death of late Raghubir Singh, the Respondent No. 5 has
continued to do his business in the premises in the question. It
is further submitted that the Respondent No. 5 was doing
business alongwith late Shri Raghubir Singh Aggarwal since
the date of letting. It is absolutely wrong that the Petitioner got
knowledge of this fact only in the year 2002. It is submitted
that the Petitioner/Landlord had full knowledge right from the
commencement of the tenancy of late Shri Raghubir Singh
Aggarwal that the Respondent No. 5 is also doing business
alongwith Late Raghubir Singh in the suit premises. It is also
wrong that the Respondent No. 5 was paying any rent
separately to late Shri Raghubir Singh. It is however
absolutely incorrect and wrong that a portion of the suit
premises was sublet to Respondent No. 5..."
[Emphasis Supplied]
5. The petitioner sought an amendment on the basis that certain facts
had been omitted from the written statement and referred to it as "act of
omission and also due to inadvertence and oversight". On this ground, the
petitioner sought addition of the following paragraph in the written
statement after the paragraph extracted above:-
"...It is submitted that a notice dated May 20, 1952 under
sections 22 (2) and 38 of the Indian Income Tax Act, 1922 was
received by Shri Raghubir Singh C/o M/s. Aggarwal
Restaurant. Mr. Raghubir Singh attended the hearing before
the Income Tax Officer through his Authorised Representative
and thereafter an Assessment Order dated August 28, 1952
was passed by the Income Tax Department in respect of M/s.
Aggarwal Restaurant H-Block, Connaught Place, New Delhi.
During the course of the hearing, Mr. Raghubir Singh through
his Authorised Representative brought to the notice of the
Income Tax Officer that the Parchuna shop was handed over
by Mr. Raghubir Singh to his brother Shri Om Prakash
(Respondent No.5) much prior to accounting period i.e. March
1952. Since then, Shri Om Prakash (Respondent No. 5) has
been carrying out Parchuna/Karana/Baniya/Provision store
separately and independently from H-21. It was further
mentioned in the said order that the Respondent No.5 was
separate from Shri Raghubir Singh. The said contention of
Shri Raghubir Singh was considered by the Income Tax
Officer and the offer given by Shri Raghubir Singh to
considered his income for the assessment year 1952-1953 as
Rs. 6,600/- (Rupees Six Thousand Six Hundred Only) was
accepted by the Income Tax Officer and appropriate order was
passed in this regard. Since then, Raghubir Singh and Om
Prakash were assessed separately in respect of their respective
business which they were carrying out from their respective
shops."
[Emphasis Supplied]
The petitioner reiterated that these facts were left out in the original written
statement due to a bona fide mistake as he was not able to lay his hands on
the concerned documents.
6. The Trial Court did not accept the petitioner's application, noting that
the matter was already at the stage of cross-examination of the petitioner's
witnesses and that the documents sought to be placed on record were not
referred to in the written statement filed by the petitioner herein. The Trial
Court also recorded that the petitioner had not specified the date or manner
in which the orders came into his possession.
7. The matter was carried to the Rent Control Tribunal in appeal and the
Appellate Court has also rejected the appeal with reference, inter alia, to
the proviso to Order VI Rule 17 of the CPC and to the judgment of the
Supreme Court in Revajeetu Builders and Developers vs. Narayanswamy &
Sons (2009) 10 SCC 84. The Appellate Court has held that the proposed
amendment would be tantamount to permitting the petitioner to substitute
an entirely new or contradictory plea, and that the facts mentioned in the
application do not demonstrate an exercise of due diligence justifying an
amendment of pleadings after commencement of trial in terms of the
proviso to Order VI Rule 17 of the CPC.
8. Having heard learned counsel for the petitioner, I do not find any
ground to interfere with the concurrent judgments of the Trial Court and the
Appellate Court in this petition under Article 227 of the Constitution. Both
the Courts have correctly found that the case pleaded in the original written
statement was that the Late Raghubir Singh (the grandfather of the
petitioner) and the respondent no.5 were living in a joint family and
conducting a joint business from the suit premises. To the contrary, the
amendment sought to be incorporated indicated that the suit premises was
handed over by the Late Raghubir Singh to his brother (the respondent
no.5) much prior to March, 1952. To this extent, the proposed amendment
is contrary or inconsistent with the stand taken by the petitioner in the
written statement.
9. Further, the discussion of the Appellate Court with regard to the
effect of the proviso to Order VI Rule 17 of the CPC is also
unexceptionable. Order VI Rule 17 of the CPC, as amended in 2002,
provides as follows:-
"17. Amendment of pleadings.-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."
The contents of the amendment application in so far as it seeks to explain
the delay in seeking amendment are as follows:-
"9. It appears that act of omission and also due to
inadvertence and oversight, Respondent No. 2 has not
mentioned the facts as stated in aforegoing para 8 of the
Application and the same are required to be incorporated in
the Written Statement.
xxxx xxxx xxxx
11. It is submitted that the aforementioned facts were left in
the original Written Statement due to bonafide mistake as
Respondent No.2 was not able to lay his hands on the
documents details of which are given in para 5 of the
aforegoing Application."
The requirement of the proviso to Order VI Rule 17 of the CPC is one of
"due diligence". The aforesaid contents of the application do not disclose
diligence on the part of the petitioner but in fact refer expressly to his
"inadvertence and oversight". To permit an amendment after the
commencement of trial on the basis of an application of this nature would
be directly contrary to and inconsistent with the requirements of the
proviso.
10. The approach of the Trial Court and the Appellate Court are, in my
view, consistent with the judgments of the Supreme Court on this aspect
including the principles laid down in Revajeetu Builders and Developers
(supra) cited by the Appellate Court and the recent judgment of the
Supreme Court in M. Revanna vs. Anjanamma (2019) 4 SCC 332.
Paragraph 7 of the judgment in M. Revanna (supra) reads as follows:
"7. Leave to amend may be refused if it introduces a totally
different, new and inconsistent case, or challenges the
fundamental character of the suit. The proviso to Order 6 Rule
17 CPC virtually prevents an application for amendment of
pleadings from being 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 the trial. The proviso, to an extent, curtails
absolute discretion to allow amendment at any stage.
Therefore, the burden is on the person who seeks an
amendment after commencement of the trial to show that in
spite of due diligence, such an amendment could not have been
sought earlier. There cannot be any dispute that an amendment
cannot be claimed as a matter of right, and under all
circumstances. Though normally amendments are allowed in
the pleadings to avoid multiplicity of litigation, the court needs
to take into consideration whether the application for
amendment is bona fide or mala fide and whether the
amendment causes such prejudice to the other side which
cannot be compensated adequately in terms of money."
10. Learned counsel for the petitioner further submitted that the
documents in question have in fact been taken on record by the Trial Court
and also that the stand taken in the written statement of other respondents
are consistent with the amendment which the petitioner sought. It is made
clear that the orders passed on the petitioner's application for amendment of
the written statement, including this order, do not seek to alter the position
regarding any document which may otherwise have been taken on record
by the Trial Court or the pleadings of any other party. These observations
are confined to the question of whether the petitioner herein ought to be
permitted to amend his written statement.
11. For the reasons aforesaid, the present petition is dismissed.
PRATEEK JALAN, J.
JULY 23, 2019
„j‟/s
