Punjab-Haryana High Court
Sant Footwear Pvt Ltd And Another vs Sarvinder Singh on 17 January, 2025
Neutral Citation No:=2025:PHHC:010251
CR-5623-2019 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR-5623-2019
Date of Decision : 17.01.2025
Sant Footwear Pvt. Ltd.
...... Petitioner
Versus
Sarvinder Singh
...... Respondent
CORAM : HON'BLE MR. JUSTICE VIKRAM AGGARWAL
***
Present : Sh. Rajbir Singh Guron, Advocate
for the petitioner.
Mr. Rajesh Sood, Advocate
for the respondent.
***
VIKRAM AGGARWAL, J (ORAL)
The present revision petition is directed against the order dated
06.03.2019, passed by the learned Rent Controller, Chandigarh vide which the
application filed by the respondent under Order 6 Rule 17 of the Code of Civil
Procedure, 1908 (for short 'CPC') for amendment of the eviction petition was
allowed.
2. The facts, as emanating from the revision petition, are that an
eviction petition was filed by the respondent-landlord under Section 13-B of the
East Punjab Urban Rent Restriction Act, 1995 (for short 'the Rent Act') for
eviction of the petitioner-tenant from SCO No.85-86, Sector 17, Chandigarh
(hereinafter referred to as 'the demised premises') on the ground of personal
necessity as he intended to open a multi-utility mall.
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3. The respondent-landlord claimed to have become co-owners to the
extent of 16.6% share in the demised premises on the basis of a family
settlement. It was claimed that the petitioner-tenant was a tenant on the ground
floor (front side portion) of the demised premises. The tenancy was a monthy
tenancy. The petitioner required the demised premises for his personal use and
occuption for running multi-utility Mall. It has been averred that the petitioner
did not own or possess any other non-residential/commercial property for the
said purpose. Under the circumstances, the petition was filed.
4. The eviction petition was opposed by the petitioner-tenant. In the
written statement, a preliminary objection was raised that the petitioner was a
tenant in the demised premises vide lease deed dated 20.09.1991 and the area
under occupation of the petitioner-tenant was one complete Bay on the ground
floor measuring 17 x 80 feet, mezzanine floor measuring 17 x 80 feet and
complete basement measuring 34 x 80 feet. It was claimed that the said
premises had been taken on rent from one T.S.Madaan, Satwant Kaur Madaan
and their son Deshvir Singh Madaan. Other preliminary objections were also
raised. The rate of rent was claimed to be Rs.18,500/- per month which had
been increased to Rs.22,916/- per month. It has been averred that the petitioner
No.1, through petitioner no.2, had handed over the vacant physical possession of
the demised premises to the petitioner on 09.04.2014 and respondent-company
was not in occupation of the demised premises and the entire rent stood paid. It
was also claimed that the petitioner-tenant was not in arrears of rent.
5. During the pendency of the eviction petition, an application under
Order 6 Rule 17 CPC was moved by the respondent-landlord for amendment of
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the eviction petition. It was admitted in the application that the petitioner-tenant
was a tenant on the ground floor, mezzanine floor and basement and
accordingly, the heading and prayer clause of the rent petition was sought to be
amended. It was averred that the said amendment would not change the basic
character of the eviction petition.
6. The application was opposed by the petitioner-tenant. In the reply,
preliminary objections regarding maintainability were raised. It was averred
that in view of the categoric averments made in the written statement to which
no replication had been filed, the application would not be maintainable. It was
also averred that petitioner No.1, through petitioner no.2, had handed over the
vacant physical possession of the demised premises to the petitioner on
09.04.2014 and respondent was not in occupation of the demised premises and
the entire rent stood paid. It was averred that the case was fixed for
respondent's evidence when the application for amendment of the eviction
petition was moved on 18.11.2014. It was averred that under the circumstances,
the application could not be allowed.
7. By way of the impugned order, the application was allowed, leading
to the filing of the present revision petition.
8. I have heard learned counsel for the parties..
9. Sh. Rajbir Singh Guron, learned counsel representing the
petitioners, strenuously urged that the impugned order is not sustainable. He
submits that the application was moved to fill up the lacunae as in the written
statement, it was averred that the tenancy of the petitioner was on the ground
floor, mezzanine floor and basement and that lease deed dated 20.09.1991 had
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been executed. Learned counsel submits that in case the amendment is allowed,
it would amount to filling up the lacunae which is not permissible. Reference
has also been made to the provisions of Order 6 Rule 17 CPC to submit that
such an amendemnt could not have been allowed. In support of his contentions,
learned counsel has placed reliance upon the judgments of Supreme Court of
India in Vidyabai & Ors. Versus Padmalatha & Anr. 2009 (1) R.C.R. (Civil)
763 and Sampath Kumar versus Ayyakannu and another 2002 (4) R.C.R.
(Civil) 566, judgment dated 23.11.2016 of a Coordinate Bench of this Court in
Dalip Singh versus Bhupinder Nagpal, passed in CR No.5302-2016; judgment
of Madras High Court in Lord Balamukundas versus K.Kothandapani and
others 1971 AIR (Madras) 422 and the judgment of Gujrat High Court in
Vasudev Dhanji Varu-Decd. Thro' Heirs & Rep. & Ors. Versus Bhogilal
Manohardas Vaishnav, Anjar Kutch 1998 (1) GujLH 728.
10. On the other hand, Sh. Rajesh Sood, learned counsel representing
the respondents-landlords has submitted that there is no illegality in the order,
for, the nature of the eviction petition would not change and the amendment was
sought only in the heading and the prayer clause.
11. I have considered the submissions made by learned counsel for the
parties.
12. Admittedly, the eviction petition was filed for eviction of the
petitioner herein from the ground floor of the demised premises. In the written
statement, a categoric stand was taken that the petitioner was in possession of
one full Bay at the ground floor, the mezzanine floor and the complete
basement. The rate of rent was also claimed to be Rs.18,500/- per month on the
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basis of lease deed dated 20.09.1991. Admittedly, issues were framed and the
case was at the stage of evidence. Order 6 Rule 17 CPC clearly lays down that
an application for amendment is not to be allowed after the trial has
commenced, unless the Court comes to the conclusion that inspite of due
diligence, the party could not have raised the matter before the commencement
of trial, though it is also true that amendment otherwise can be allowed at any
stage. It cannot, by any stretch of imagination, be even assumed that despite due
diligence, the respondent could not have moved the application for amendment
before the commencement of trial. It had been claimed in the written statement
about the rate of rent and the area in occupation of the tenants. Then to simply
say that the amendment in the heading and the prayer would not change the
nature of the eviction petition would be a fallacy. If the amendment is allowed,
an amended written statement would come, issues would be framed and then
evidence would be led again. No party can be permitted to change its stand to
this extent. The law is well settled on the said issue. In Revajeetu Builders &
Developers versus Narayanaswamy & Sons & Others 2009 (10) SCC 84, the
Supreme Court of India examined the entire law on amendment of pleadings
starting from the decision of the privy council in Ma Shwe Mya v. Maung Mo
Hnaung, AIR 1922 Privy Council 249 wherein it was observed as under:-
"All rules of court are nothing but provisions intended to secure
the proper administration of justice, and it is therefore essential
that they should be made to serve and be subordinate to that
purpose, so that full powers of amendment must be enjoyed and
should always be liberally exercised, but nonetheless no power
has yet been given to enable one distinct cause of action to be
substituted for another, nor to change, by means of amendment,
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the subject-matter of the suit."
A perusal of the aforesaid observations of the privy council as far
back as in 1922 would show that it is the same law which is holding the field
even today. It is not in doubt that powers of amendment should be exercised
liberally but by means of the amendment, the nature and subject matter should
not change. The Supreme Court then examined various judgments rendered by
the English Courts, the Supreme Court, the Bombay High Court etc. and certain
principles were culled out which ought to be taken into consideration while
allowing or rejecting an application for amendment;
On critically analyzing both the English and Indian cases, some
basic principles emerge which ought to be taken into
consideration while allowing or rejecting the application for
amendment.
(1) Whether the amendment sought is imperative for proper
and effective adjudication of the case ?
(2) Whether the application for amendment is bona fide or
mala fide ?
(3) The amendment should not cause such prejudice to the
other side which cannot be compensated adequately in
terms of money;
(4) Refusing amendment would in fact lead to injustice or
lead to multiple litigation;
(5) Whether the proposed amendment constitutionally or
fundamentally changes the nature and character of the
case? And
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(6) As a general rule, the court should decline amendments
if a fresh suit on the amended claims would be barred by
limitation on the date of application.
13. The said view of the Supreme Court of India has recently been
reiterated in the case of Basavaraj versus Indira And Others 2024 (4) RCR
(Civil) 115 also. In fact, in this case, the Supreme Court held that oversight
cannot be accepted as a ground to allow any amendment in the pleadings at the
fag end of the trial. Reference can also be made to the judgment of the Supreme
Court of India in Life Insurance Corporation of India versus Sanjeev Builders
Private Limited & Anr. 2022 AIR (Supreme Court) 4256 wherein also, the law
as regards amendment of pleadings was summed up;
(i) Order II Rule 2 CPC operates as a bar against a
subsequent suit if the requisite conditions for application thereof
are satisfied and the field of amendment of pleadings falls far
beyond its purview. The plea of amendment being barred under
Order II Rule 2 CPC is, thus, misconceived and hence negatived.
(ii) All amendments are to be allowed which are necessary for
determining the real question in controversy provided it does not
cause injustice or prejudice to the other side. This is mandatory,
as is apparent from the use of the word "shall", in the latter part
of Order VI Rule 17 of the CPC.
(iii) The prayer for amendment is to be allowed
(i) if the amendment is required for effective and proper
adjudication of the controversy between the parties, and
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(ii) to avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the other side,
(b) by the amendment, the parties seeking amendment does not
seek to withdraw any clear admission made by the party which
confers a right on the other side and
(c) the amendment does not raise a time barred claim, resulting in
divesting of the other side of a valuable accrued right (in certain
situations).
(iv) A prayer for amendment is generally required to be allowed
unless
(i) by the amendment, a time barred claim is sought to be
introduced, in which case the fact that the claim would be time
barred becomes a relevant factor for consideration,
(ii) the amendment changes the nature of the suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a valid defence.
(v) In dealing with a prayer for amendment of pleadings, the
court should avoid a hypertechnical approach, and is ordinarily
required to be liberal especially where the opposite party can be
compensated by costs.
(vi) Where the amendment would enable the court to pin-
pointedly consider the dispute and would aid in rendering a more
satisfactory decision, the prayer for amendment should be
allowed.
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(vii) Where the amendment merely sought to introduce an
additional or a new approach without introducing a time barred
cause of action, the amendment is liable to be allowed even after
expiry of limitation.
(viii) Amendment may be justifiably allowed where it is intended
to rectify the absence of material particulars in the plaint.
(ix) Delay in applying for amendment alone is not a ground to
disallow the prayer. Where the aspect of delay is arguable, the
prayer for amendment could be allowed and the issue of
limitation framed separately for decision.
(x) Where the amendment changes the nature of the suit or the
cause of action, so as to set up an entirely new case, foreign to the
case set up in the plaint, the amendment must be disallowed.
Where, however, the amendment sought is only with respect to the
relief in the plaint, and is predicated on facts which are already
pleaded in the plaint, ordinarily the amendment is required to be
allowed.
(xi) Where the amendment is sought before commencement of
trial, the court is required to be liberal in its approach. The court
is required to bear in mind the fact that the opposite party would
have a chance to meet the case set up in amendment. As such,
where the amendment does not result in irreparable prejudice to
the opposite party, or divest the opposite party of an advantage
which it had secured as a result of an admission by the party
seeking amendment, the amendment is required to be allowed.
Equally, where the amendment is necessary for the court to
effectively adjudicate on the main issues in controversy between
the parties, the amendment should be allowed. (See Vijay Gupta v.
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Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine Del 1897)
14. If the matter is examined on the touchstone of the principles
enunciated by the Supreme Court of India, as referred to above, the irresistible
conclusion that this Court arrives at is that neither was the amendment essential
for the just decision of the case nor the request was bonafide. Further, this
amendment would cause prejudice to the petitioner-tenant. Refusing the
amendment will not lead to injustice. Further, the amendment fundamentally
changes the nature of the case as well.
In view of the aforementioned facts and circumstances, the present
revision petition is allowed, the impugned order dated 06.03.2019, passed by the
learned Rent Controller, Chandigarh is set aside and the application for
amendment of the eviction petition is dismissed.
Pending application(s), if any, stand(s) disposed of accordingly.
17.01.2025 (VIKRAM AGGARWAL)
mamta JUDGE
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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