# (2013) 1 ILRA 222

- **Citation:** (2013) 1 ILRA 222
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-02-12
- **Case number:** Civil Misc. Writ Petition No. 5979 of 2013
- **Bench:** Krishna Murari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/2013-1-ilra-222-42435
- **Pages:** 4

## Headnote

Code of Civil Procedure, Order 6 Rule 17amendment of plaint-on highly belated
stage of evidence-facts sought to be
brought-already
in
written
statementnothing whisper about no knowledge of this
fact earlier-if such amendment liberally
allowed-would be no end of litigation-Trial
Court rightly rejected-no interference call
for.

Held: Para-15

 In the case in hand, the facts sought to be
added by way of amendment by the
petitioner were either already existing in
the written statement or were not germane
and irrelevant to the controversy. Further,
the application was moved after the trial
had commenced without specifying the
reasons that the facts could not be raised or
mentioned in the pleadings before the
commencement of trial. The only reason
mentioned in the amendment application
and the affidavit filed in support thereof is
that at the time of preparation of the case,
it transpired that facts were left out from
being mentioned in the written statement.
Petitioner has not even asserted that facts
were not within his knowledge as such
despite
due
diligence
could
not
be
mentioned in the written statement.

Case Law discussed:
{2012 (3) ARC 619}

## Text

222 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.02.2013

BEFORE
THE HON'BLE KRISHNA MURARI, J.

Civil Misc. Writ Petition No. 5979 of 2013

Gopal Chandra

...Petitioner
Versus
Kundan Lal Gulati
 ...Respondents

Counsel for the Petitioner:
Sri Lalit Kumar

Counsel for the Respondents:
Sri R.K.Pandey

Code of Civil Procedure, Order 6 Rule 17amendment of plaint-on highly belated
stage of evidence-facts sought to be
brought-already
in
written
statementnothing whisper about no knowledge of this
fact earlier-if such amendment liberally
allowed-would be no end of litigation-Trial
Court rightly rejected-no interference call
for.

Held: Para-15

 In the case in hand, the facts sought to be
added by way of amendment by the
petitioner were either already existing in
the written statement or were not germane
and irrelevant to the controversy. Further,
the application was moved after the trial
had commenced without specifying the
reasons that the facts could not be raised or
mentioned in the pleadings before the
commencement of trial. The only reason
mentioned in the amendment application
and the affidavit filed in support thereof is
that at the time of preparation of the case,
it transpired that facts were left out from
being mentioned in the written statement.
Petitioner has not even asserted that facts
were not within his knowledge as such
despite
due
diligence
could
not
be
mentioned in the written statement.

Case Law discussed:
{2012 (3) ARC 619}

(Delivered by Hon'ble Krishna Murari, J.)

1. This writ petition is directed
against order dated 05.10.2012 passed by
Prescribed Authority in P. A. Case no. 02
of 2011 under Section 21 (1) (a) of U. P.
Act No. 13 of 1972, (herein after referred
to as the "Act") rejecting the application
moved by the tenant-petitioner under
Order
VI
Rule
17
CPC
seeking
amendment in the written statement.

2. I have heard learned counsel for
the petitioner and Sri R. K. Pandey,
learned
counsel
appearing
for
the
respondents.

3. Brief facts as emerge out from the
pleadings of the writ petition are that
respondent-landlord filed an application
under Section 21 (1) (a) of the Act for the
release of the shop in dispute on the
ground of need to establish the business
for his younger son. The application was
contested by the petitioner-tenant by
filing written statement. During the
pendency of the proceedings after the trial
had commenced and the matter was being
fixed for hearing an application under
Order
VI
Rule
17
CPC
seeking
amendment in the written statement was
moved which was rejected.

4. It has been contended by the
learned counsel for the petitioner that
parties are at liberty to amend their
pleadings which is necessary and essential
for adjudication of the dispute and the
same is to be allowed liberally and the
Prescribed Authority committed an error
of law in rejecting the amendment
application. Reliance in support of the
1 All] Gopal Chandra Vs.Kundan Lal Gulati
223
contention has been placed on the
judgment of Hon'ble Apex Court in the
case of Abdul Rehman and another Vs.
Mohd. Ruldu & others, {2012 (3) ARC
619}.

5. In reply, it has been submitted on
behalf of the respondent that facts sought
to be brought on record by way of
amendment were already existing in the
written statement and the amendment was
moved at a highly belated stage when the
trial had already commenced with sole
intention to delay the proceedings and the
same has rightly been rejected by the
Prescribed Authority.

6. I have considered the rival
submissions and perused the record.

7. Release application was filed by
respondent-landlord on the allegation that
shop was genuinely and bonafidely
required for establishing his younger son
in the business of mobile repairing and
recharging of the mobile connections. It
was also pleaded that petitioner-tenant
was already having a shop of his own
which is just adjacent to the shop in
dispute where he is running sweet shop in
the name and style of "Gopal Sweet
House" and there was no requirement and
the shop was being occupied by him. It
was also pleaded that just about 15-20
yards
from
the
shop
in
question,
petitioner-tenant has constructed a huge
residential house wherein also there are
two shops which have been let out at high
rent.

8. Allegations made in the release
application were denied by the petitionertenant in his written statement. It was
pleaded that because of the old age,
landlord-respondent was not in a position
to run any business and the existing
business of mobile repairing at tenanted
shop at Gandhi Road was actually being
looked after by his younger son and there
was no need to set up a separate business
for him.

9. After the stage of evidence was
over and the matter was being fixed for
hearing,
petitioner-tenant
moved
an
application under Order VI Rule 17 CPC
seeking to amend written statement by
adding certain paragraphs. Through the
amendment application, following facts
were sought to be added in the written
statement :

(i)that the applicant-landlord in P. A.
Case no. 03 of 1994 initiated by landlord
for his ejectment had set up a case that
present shop was not suited for his
business as it is situated in a lane where
he
could
not
carry
the
business
successfully.

(ii)that the shop in dispute was not
suited for the business to be set up for his
son as the said business cannot be carried
out in a small shop;

(iii)that earlier case no. 03 of 1994
was initiated by the landlord of the shop
seeking ejectment of the respondent,
herein, was collusive as despite the
application having been allowed till date
landlord of the said shop has not taken
over possession;

(iv)that son of the respondent for
whose need the release of the shop in
question
has
been
set
up
is
not
unemployed as he has purchased two
plots on 06.04.2010 and has raised
construction thereon.
224 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

10.

Prescribed
Authority
has
rejected the amendment application on the
finding that facts sought to be added by
way
of
amendment
that
landlordrespondent in earlier case no. 03 of 1994
has set up the case that the present shop in
dispute was not suited for his business
was irrelevant in as much as in the present
case, release of the shop was sought for
the business of his younger son and not
for his own business. In respect to the
amendment sought with respect to the
shop in dispute being small and unfit for
establishing the proposed business, the
fact has already been mentioned in
paragraphs 28 and 29 of the written
statement. Facts being brought on record
by way of amendment in respect of there
being collusion between the respondent,
herein and the landlord of the shop at
Gandhi Road in which he was a tenant
being collusive has been rejected on the
ground that there is no relevance in as
much as the release of shop in dispute was
sought on the ground of need of his son
and not for his own business. The other
amendment sought with regard to the fact
that son of the landlord-respondent has
purchased two plots and has raised
construction is already contained in the
written statement and thus, the said
amendment was also not required.

11. Order VI Rule 17 CPC provides
that 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. However, in view of the
proviso, no application for amendment is
liable to be allowed after the trial has
commenced, unless the Court comes to
the
conclusion
that
parties seeking
amendment could not have raised the
matter before the commencement of trial
inspite of due diligence.

12. The object of the rule is that
Court should try and adjudicate the case
on merits and allow all amendments that
may be necessary for determining the real
question in controversy between the
parties, provided it does not cause
injustice or prejudice to other side.

13. It is, no doubt, correct that
Hon'ble Apex Court in series of decision
has held that the power to allow the
amendment is wide and can be exercised
at any stage of the proceeding in the
interest of justice. Even in the case of
Abdul Rehman and another Vs. Mohd.
Ruldu and others (supra) relied upon by
the learned counsel for the petitioner, the
same view has been expressed. It may be
relevant to quote paragraph 7 of the said
reports :

"It is clear that parties to the suit are
permitted to bring forward amendment of
their pleadings at any stage of the
proceeding for the purpose of determining
the real question in controversy between
them. The Courts have to be liberal in
accepting the same, if the same is made
prior to the commencement of the trial. If
such application is made after the
commencement of the trial, in that event,
the Court has to arrive at a conclusion that
in spite of due diligence, the party could
not have raised the matter before the
commencement of trial."

14. The concept that all the
amendments should be liberally allowed
does not mean that any amendment
sought by the party in the pleadings
1 All] Vivek Singh And Another Vs. State of U.P. Thru. Secy. & Ors.
225
irrespective of the fact the same already
exists or is irrelevant and not germane to
the controversy requiring adjudication is
also to be allowed. If this interpretation is
given to the concept then litigation
between the parties would never come to
an end. It is only where amendments are
necessary
for
proper
and
effective
adjudication of dispute between the
parties on merits then the same should not
be rejected on technical ground. The
amendments if allowed in any given case
may require fresh evidence which would
unnecessarily delay the disposal of the
proceedings and for this reason, the
Legislature put a rider by enacting a
proviso to Order VI Rule 17 providing
that after the commencement of trial
litigant
seeking
amendment
in
the
pleadings has to demonstrate that despite
due diligence, the fact could not be
mentioned in the pleadings. Obvious
purpose of enacting the proviso is to
discourage
unwarranted
amendments
being sought in the pleadings with the
purpose of delaying the disposal of the
proceedings.

15. In the case in hand, the facts
sought to be added by way of amendment
by the petitioner were either already
existing in the written statement or were
not germane and irrelevant to the
controversy. Further, the application was
moved after the trial had commenced
without specifying the reasons that the
facts could not be raised or mentioned in
the pleadings before the commencement
of trial. The only reason mentioned in the
amendment application and the affidavit
filed in support thereof is that at the time
of preparation of the case, it transpired
that facts were left out from being
mentioned in the written statement.
Petitioner has not even asserted that facts
were not within his knowledge as such
despite due diligence could not be
mentioned in the written statement.

16. Thus, it appears that amendment
application was not bonafide and was
made at a highly belated stage after the
trial had commenced only with sole
intention to delay disposal of the
proceedings and the same has rightly been
rejected by the Prescribed Authority.

17. In view of the above facts and
discussions, no illegality is reflected in
the impugned order which may require
any interference by this Court.

18. Writ petition accordingly fails
and stands dismissed in limine.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.02.2013

BEFORE
THE HON'BLE AMRESHWAR PRATAP
SAHI,J.

Civil Misc. Writ Petition No. 6837 of 2013

Vivek Singh And Another
...Petitioner
Versus
State Of U.P.Thru Secy & Ors. ..Respondents

Counsel for the Petitioner:
Sri Siddharth Khare
Sri Ashok Khare

Counsel for the Respondents:
C.S.C.

U.P. Subordinate Educational (Trained
granted grade) Service Rules 1983appointment of T.G.T. Hindi teacher in
Government
College-essential
qualification-graduate in Hindi plus one
subject as Sanskrit in intermediate-heldcontention
of
petitioner
possessing