Uttarakhand High Court
Dharmshala Shambhubara Trust vs Sri Ved Prakash & Another on 18 March, 2021
HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition No.2988 of 2013 (M/S)
Dharmshala Shambhubara Trust, Rishikesh
& others .....Revisionists
Vs.
Sri Ved Prakash & another ....Respondents
Advocate : Mr. Sandeep Kothari, Advocate for the petitioners.
Mr. Ramji Shrivastava, Advocate for the respondents.
Hon'ble Sharad Kumar Sharma, J.
It is a plaintiff's petition, who had preferred this writ petition,
being aggrieved, as against the impugned judgment of 13.12.2013, which
was rendered by the court of Additional District Judge, Rishikesh, in Civil
Revision No.01 of 2006. As a consequence of the impugned judgment,
which is under challenge in the present writ petition, the revision, which
was preferred by the revisionists has been allowed and as a consequence
thereto, the amendment preferred by the defendants/respondents was also
allowed, permitting them for bringing about the changes in the pleadings,
which were raised by them in the written statement. As against these
orders, there are three fold arguments, which has been extended by the
counsel for the petitioners to assail the impugned revisional court's order
allowing the amendment application:-
(i) That the defendants/respondents in the amendment application,
which was preferred by them, had submitted that their tenancy
was flowing from some other person i.e. other than the petitioners.
Hence, he submits that this changed stand taken by the
defendants/respondents, in the written statement by virtue of the
amendment, where the landlordship is a fact, which is being
sought to be withdrawn, will amount to be a withdrawal of an
admission already made. Hence, the amendment cannot be
permitted.
2. This may not be a logical reason, to accept the gravamen of
argument of the petitioner, because the fact if the nature of amendment,
which is being sought to be made by the amendment application, which
was preferred by the defendants/respondents herein, in fact they are not
withdrawing their status which they have admitted i.e. that to be tenant,
whether their tenancy is from the landlordship of the petitioners or one of
the petitioners, would still be a subject matter to be adjudicated on merits
by the trial court and it cannot be brought within the frame work as if, the
nature of amendment sought for was amounting to withdrawal of
admission, because it is a question yet to be decided on merits by the court
below.
3. The counsel for the petitioners had further submitted that the
fact of the creation of a tenancy and the existence of a relationship of
landlord and tenant, qua the respondents would, be presumed that it was in
the knowledge of the defendants and this fact could not have been
permitted to be incorporated belatedly by virtue of an amendment. It is
settled law by virtue of a judgment rendered by the Hon'ble Apex Court, in
"Sampat Kumar's case", that a delay in filing the amendment application
in itself cannot be a ground to deny an amendment, because even otherwise
if the provisions contained under Order 6 Rule 17 of the C.P.C. is taken
into consideration, the language in itself speaks that the amendment could
be considered at any stage of proceedings and it has been held that any
stage of proceedings, would be inclusive of the proceedings up to the stage
of Hon'ble Apex Court even. Hence, it cannot be said that preference of an
amendment after filing of written statement was filed belatedly. This
ground too is not acceptable by this Court.
4. The principles for considering the amendments in pleadings,
which are contemplated under Order 6 Rule 17 of the C.P.C. in relation to
the amendment being contemplated to be taken in the written statement or
in the plaint, had to be distinctly balanced under a different pedestal
altogether. The Courts have consistently held that the amendment sought in
the written statement, has had to be liberally construed and the stringent
principles governing the amendments, which is sought to be brought in the
plaint, would not be equivalently held to be applicable when the
amendment is being sought in the written statement because amendment in
the written statement will always be a subject matter of a defence, which is
available to the plaintiff in the stages of proceedings before the court
below.
5. In that view of the matter, allowing of the amendment
application at any stage of the proceedings in written statement, was not
prejudicial to the interest of pleadings therein because in fact after its
incorporation, the issue, which has been incorporated therein by way of
amendment in the written statement, was still left open to the test of
scrutiny of evidence before the court below. Hence, for the reasons
aforesaid, I am of the view that if the judgment of the revisional court itself
is taken into consideration, the allowing of the amendment application, it
cannot be said that it was depriving a right of the petitioner, and at that
stage, it was only a change of pleading, which was permitted and it was
still left open to be scrutinized by the Court.
6. Hence, for the reasons aforesaid, I am of the view that the
impugned revisonal order does not suffer from any apparent error, which
would call for any interference under Article 227 of the Constitution of
India. The writ petition lacks merit and the same is dismissed.
Simultaneously, it is observed that the Judge, S.C.C will make all sincere
efforts to decide the S.C.C. Suit No.35 of 2002, Dharmshala Shambhubara
Trust and others vs. Ved Prakash and another itself as expeditiously as
possible but not later than six months from the date of production of
certified copy of this order.
(Sharad Kumar Sharma, J.)
18.03.2021
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