# Azad Chaudhary Revisionist v. Jai Kumar & Ors

- **Citation:** (2016) 5 ILRA 92
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-03
- **Bench:** Manoj Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/azad-chaudhary-revisionist-v-jai-kumar-ors-44002
- **Pages:** 9

## Text

92 INDIAN LAW REPORTS ALLAHABAD SERIES
case/materially affect the trial or core of the prosecution's case, render the testimony of the witness
liable to be discredited.

A similar view has been reiterated by this Court in Tehsildar Singh & Anr V. State of
U.P., [AIR 1959 SC 1012]; Pudhu Raja & Anr. V. State, Rep. By Inspector of Police, [JT 2012 (9)
SC 252]; and Lal Bahadur v. State (NCT of Delhi), [(2013) 4 SCC 557)].

Thus, it is evident that in case there are minor contradictions in the depositions of the
witnesses the same are bound to be ignored as the same cannot be dubbed as improvements and it
is likely to be so as the statement in the court is recorded after an inordinate delay. In case the
contradictions are so material that the same go to the root of the case, materially affect the trial or
core of the prosecution case, the court has to form its opinion about the credibility of the witnesses
and find out as to whether their depositions inspire confidence.""

43. In view of the discussion made above, after careful scrutiny of the evidence, we are of
the considered view that the argument of learned counsel for the appellants to disbelieve the
evidence of all the three eyewitnesses has no substance. There is a voluminous evidence against the
appellants that they have committed this offence. Their evidence stands corroborated by the
medical evidence. The learned trial court has properly appreciated the evidence on record and has
rightly convicted the appellants.

44. Accordingly these appeals have no force deserve to be dismissed and are hereby
dismissed.

45. Office is directed to communicate this order forthwith to the court concerned to ensure
compliance and to send back the lower court record.
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REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.05.2016

BEFORE

THE HON'BLE MANOJ MISRA, J.

S.C.C. Revision Defective No.- 99 Of 2016

Azad Chaudhary ...Revisionist
Versus
Jai Kumar & Ors. ...Opposite Parties

Counsel for Revisionist:
Arvind Srivastava
5 All. Azad Chaudhary Vs Jai Kumar & Ors.

93
Counsel for Opposite Parties:
Arvind Srivastava, Pushkar Srivastava

Present revision has been filed against the order dated 5.2.2016 passed by Additional District Judge, Court
No. 4, Jhansi/ Judge Small Causes Court in SCC Suit No. 24 of 2013. The said order disposes of two
applications. One is an application no.62 Ga filed by the defendant revisionist seeking recall of the order dated
29.01.2016 by which the evidence of the defendant was closed; and the other is application no.66 Ga by
which the defendant-revisionist sought amendment in the written statement. Application 62 Ga was allowed
and order dated 29.01.2016 was recalled whereas application 66 Ga has been rejected. Therefore this revision
is confined to the extent it rejects the application 66 Ga.

Suit No. 24 of 2013 was filed by the plaintiff-respondents against the defendant-revisionist for eviction of the
defendant- revisionist from a shop which was a part of House No. 1915. Suits which have been instituted after
insertion of the proviso to Rule 17 of Order VI CPC, where the trial has commenced, the discretion of the
court to allow an amendment can be exercised only when 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 question that arises for consideration is whether the defendant revisionist has succeeded in
demonstrating that despite due diligence the amendment sought could not have been brought before the
commencement of the trial. In the instant case, there is not even a whisper in the amendment application,
which is on record, to disclose that despite due diligence the amendment as was being sought in the written
statement could not have been sought before the commencement of the trial.

The revision is dismissed.

List of Cases Cited:

1. Basavan Jaggu Dhobi Vs. Sukhnandan Ramdas Chaudhary 1995 Supp (3) SCC 179
2. Sushil Kumar Jain Vs. Manoj Kumar and another (2009) 14 SCC 38
3. Sumesh Singh Vs. Phoolan Devi and others (2009) 12 SCC 689
4. Pradeep Singhvi and another Vs. Hero Dhankani and others (2004) 13 SCC 432
5. Sajjan Kumar Vs. Ram Kishan (2005) 13 SCC 89
6. Usha Balashaheb Swami and others Vs. Kiran Appaso Swami and others (2007) 5 SCC 602
7. Vidyabai v. Padmalatha, (2009) 2 SCC 409
8. J. Samuel v. Gattu Mahesh, (2012) 2 SCC 300

(Delivered by Hon'ble Manoj Misra, J.)

1. Heard Sri Arvind Srivastava (Adv. Roll No. A/A1243) for the defendant-revisionist and Sri
Arvind Srivastava (Adv. Roll No. A/A1244) for the plaintiff-respondents.

2. This is defendant's revision against the order dated 5.2.2016 passed by Additional District
Judge, Court No. 4, Jhansi/ Judge Small Causes Court in SCC Suit No. 24 of 2013. The said order
disposes of two applications. One is an application no.62 Ga filed by the defendant revisionist
seeking recall of the order dated 29.01.2016 by which the evidence of the defendant was closed;
and the other is application no.66 Ga by which the defendant-revisionist sought amendment in the
written statement. Application 62 Ga was allowed and order dated 29.01.2016 was recalled
94 INDIAN LAW REPORTS ALLAHABAD SERIES
whereas application 66 Ga has been rejected. Therefore this revision is confined to the extent it
rejects the application 66 Ga.

3. Facts necessary to understand the controversy in issue are that SCC Suit No. 24 of 2013 was
filed by the plaintiff-respondents against the defendant-revisionist for eviction of the defendantrevisionist from a shop, which, according to paragraph no.1 of the plaint, was part of House No.
1915 situated at Shivaji Nagar, Kanpur Road, Jhansi, with its boundaries disclosed at the bottom of
the plaint. The plaint case was that the plaintiff-landlords were owner of premises No. 1915 and the
defendant-revisionist was tenant of a shop situated therein at the rate of Rs. 1,000/- per month. In
paragraph 3 of the plaint, it was pleaded that the premises in dispute was a new construction raised
in the year 2004 and was assessed for the first time in the year 2002, therefore, U.P. Act No. 13 of
1972 was not applicable. In paragraph 4 of the plaint it was stated that the tenancy had been
terminated by notice dated 20.08.2013, which was served on 20.08.2013 itself to which an incorrect
reply was sent on 12.09.2013. A written statement was filed. In paragraphs 1 and 3 of the written
statement it was stated that the contents of paragraphs 1 and 3 of the plaint are not accepted and
that detailed reply has been given in additional pleas. In the additional pleas of the written
statement, in paragraph 10 thereof, it was stated that the defendant is a tenant @ Rs.500 of an
unnumbered shop whose boundaries are disclosed at the bottom of the plaint. It was further stated
therein that in addition to the plaintiffs, the owner/ landlords of the premises were Kailash
Kushwaha, Smt. Kalawati, Smt. Kaushalya, Sunny and Chhotu and that any plea to the contrary
was incorrect. In paragraph 14 of the written statement, it was stated that the plea taken in
paragraphs 3 and 4 of the plaint was incorrect inasmuch as in the written statement and in the
objection filed by the landlord in Original Suit No. 148 of 2013 and in Misc. Case No. 56 of 2013
respectively, it was not specifically pleaded that the construction of the shop was raised for the first
time in the year 2006 (2004) and, therefore, the plaintiff-landlords were estopped from taking any
such plea which goes contrary to their stand taken in Original Suit No. 148 of 2013 and Misc. Case
No. 56 of 2013.

4. It appears that the case proceeded and statement of the landlord was recorded and a date
was fixed for recording of defense evidence on which date the defendant absented therefore the
defense evidence was closed by order dated 29.01.2016, which was recalled. Before that, it
transpires, an amendment application was filed by the plaintiff-landlords in the month of November
2015 seeking correction in paragraph 3 of the plaint so that in place of 2004 it be recorded as 2002,
which was allowed and that order has neither been brought on record nor its validity assailed by the
revisionist. In fact, it appears that additional written statement was also filed as would be apparent
from paragraph 11 of the affidavit filed in support of stay application.

5. Thereafter, on 05.02.2016, the defendant-revisionist moved an application 66 Ga seeking
amendment in the written statement by way of addition in paragraph 14 of the written statement to
the effect that the shop in dispute is not part of House No. 1915 but is separate from the said House
and the statement made in paragraph 3 of the plaint is nothing but false. It is this amendment
application which the court below rejected by the impugned order.
5 All. Azad Chaudhary Vs Jai Kumar & Ors.

95

6. The court below rejected the amendment application on the ground that the said amendment
takes away the admission made by the defendant-revisionist in his written statement inasmuch as in
the written statement, as originally filed, it was not specifically denied that the shop in dispute was
part and parcel of House No. 1915 and even the boundaries as given in the foot of the plaint was
admitted therefore the amendment would cause serious prejudice to the plaintiff, if allowed. While
rejecting the amendment application although the trial court did not specifically record any
categorical finding that the said amendment prayer was barred by the proviso to Rule 17 of Order
VI CPC, as it was being sought after commencement of the trial, but the trial court did notice the
submission of the learned counsel for the plaintiff-landlord that the amendment was not permissible
after commencement of trial as there was no explanation offered as to why despite due diligence
the amendment could not be incorporated before the commencement of trial.

7. It is not in dispute between the parties that in the instant case, the evidence of the landlord
had already been recorded and the case was fixed for recording of evidence of defendant which was
closed by order dated 29.01.2016 and thereafter reopened by order on Application 62 Ga.

8. Ordinarily, the trial commences after framing of issues and, in any case, on recording of
evidence of any of the parties to the suit. As the instant suit is before a Small Causes Court,
therefore, framing of issues is not obligatory on the Court but since evidence of the plaintiff has
admittedly been recorded, therefore, it cannot be said that the trial has not commenced. Under the
circumstances, the proviso to Rule 17 of Order VI CPC would become applicable inasmuch as the
suit has admittedly been instituted after 1.7.2002.

9. Learned counsel for the revisionist has submitted that the court below has taken an
erroneous view by holding that by the proposed amendment the defendant sought to withdraw
admission in the pleading already made because it only seeks an addition in paragraph 14 of the
written statement, which is clarificatory in nature and only elaborates the stand taken by the
defendant, which is necessary for the purpose of deciding the real controversy between the parties.
It has been submitted that allowing the amendment in written statement should not be viewed as
strictly as in the case of plaint because it is well settled in law that defendant can even raise
conflicting and contradictory pleas to defeat the claim of the plaintiff. It has been submitted that so
far as the bar envisaged by the proviso to Rule 17 of Order VI CPC is concerned, there is no
specific finding in that regard returned by the court below and since the plaintiff himself had
amended the plaint in the year 2015 itself by seeking alteration of the year 2004, mentioned in
paragraph 3 of the plaint, to year 2002, the amendment sought by the defendant could not have
been denied by the court below. It has been submitted that the amendment, which has been sought
does not change the nature of stand taken by the defendant and causes no prejudice to the plaintiff
because in paragraph 14 of the written statement already a plea was taken by the defendant that the
landlord was estopped from taking a plea that the premises in dispute was out of the purview of
U.P. Act No. 13 of 1972 because in the Original Suit No. 148 of 2013 and in Misc. Case No. 56 of
2013 such plea was not taken. It has thus been submitted that the court below committed manifest
error of law by rejecting the amendment application which was necessitated for deciding the real
controversy between the parties.
96 INDIAN LAW REPORTS ALLAHABAD SERIES

10. Learned counsel for the revisionist placed reliance on the decision of the Apex Court in the
case of Basavan Jaggu Dhobi Vs. Sukhnandan Ramdas Chaudhary 1995 Supp (3) SCC 179 so
as to contend that amendment cannot be refused merely because it sets up a stand contradictory to
which that has already been taken because it is open to the defendant to take even contradictory
stand or contradictory stands. He has placed reliance on a decision of the Apex Court in Sushil
Kumar Jain Vs. Manoj Kumar and another (2009) 14 SCC 38 so as to contend that the courts
ought to be more liberal while considering amendment in a written statement than while
considering an amendment in the plaint and amendments which are clarificatory in nature and
sought to remove confusion should not ordinarily be rejected. Reliance has also been placed on
another decision of the Apex Court in the case of Sumesh Singh Vs. Phoolan Devi and others
(2009) 12 SCC 689 so as to contend that where the averments made in the plaint were merely
denied in the written statement without anything further and thereafter amendment is sought in the
written statement to have a clear stand it would not amount to resiling from the earlier stand and
therefore such an amendment ought not to be denied. Reliance has also been placed on a decision
of the Apex Court in the case of Pradeep Singhvi and another Vs. Hero Dhankani and others
(2004) 13 SCC 432 so as to contend that unless and until the amendment causes serious prejudice
to the plaintiff, it should not be denied, particularly if it is necessary for the purpose of determining
the real questions in controversy between the parties, because the plaintiff can always lead evidence
in rebuttal thereof. Reliance has further been placed on the decision of the Apex Court in the case
of Sajjan Kumar Vs. Ram Kishan (2005) 13 SCC 89 so as to contend that where the proposed
amendment was necessary for the purpose of bringing to the fore the real question in controversy
between the parties, the amendment should not ordinarily be refused even if it could have been
sought earlier. Reliance has also been placed on a decision of the Apex Court in Usha Balashaheb
Swami and others Vs. Kiran Appaso Swami and others (2007) 5 SCC 602 so as to contend that
the amendment can be allowed for explaining an admission and the defendant can also take
conflicting/ inconsistent pleas in the written statement.

11. Learned counsel for the plaintiff-opposite parties has submitted that the decisions which
have been cited by the learned counsel for the revisionist are not applicable to the facts of the
present case inasmuch as in all those cases question of applicability of the bar under the Proviso to
Rule 17 of Order VI CPC was not involved whereas in the instant case, the trial had already
commenced and the bar of the proviso to Rule 17 of Order VI CPC was squarely applicable which
provides 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 the trial.

12. It has been submitted on behalf of opposite parties that in the instant case, the plaintiff had
taken the plea from the very beginning that the shop in dispute i.e. the shop in occupation of the
defendant was part and parcel of House No. 1915, Shivaji Nagar, Kanpur Raod, Jhansi, as
disclosed from paragraph 1 of the plaint, and it was also stated that the boundaries of the said house
were given at the bottom of the plaint. In paragraph 3 of the plaint again the same position was
reiterated. It has been submitted that in the written statement neither in the additional pleas nor in
the para wise reply to the plaint there is any denial that the shop in dispute was not part and parcel
5 All. Azad Chaudhary Vs Jai Kumar & Ors.

97
of House No. 1915, Shivaji Nagar, Kanpur Road, Jhansi. It has been submitted that in paragraph 10
of the written statement, the defendant had himself admitted that he happens to be tenant of the
shop, at the rate of Rs. 500/- per month, the boundaries of which have been given at the bottom of
the plaint. Meaning thereby that this fact was admitted to the plaintiff that the shop in dispute was
part and parcel of House No. 1915. It has been submitted that under the circumstance, taking a plea
by way of alleged clarification in the written statement that the shop in dispute was not part and
parcel of House No. 1915 did cause serious prejudice to the plaintiff and it actually affects the
import of the earlier statement made by the defendant in his pleadings. It has been submitted that
since this fact was known to the defendant from the very beginning that the shop in dispute was
being claimed as part and parcel of House No. 1915 by the plaintiff, the amendment which has
been sought after commencement of the trial cannot be said to be an amendment which could not
have been made in spite of exercise of due diligence on his part before the commencement of the
trial. It has been submitted that even otherwise there is no whisper in the amendment application
which may satisfy the requirement of the proviso to Rule 17 of Order VI CPC.

13. I have given thoughtful consideration to the submissions of learned counsel for the parties.
So far as contention of learned counsel for the revisionist that an amendment can be made in the
written statement even to take contrary stand or inconsistent pleas is concerned, there can be no
cavil to the said proposition but here the position is different. In this case, the landlord had from the
very beginning taken a stand that the shop in dispute was part and parcel of House No. 1915. The
defendant was aware of the said plea taken by the plaintiff yet in the written statement that was
filed he chose not to deny the aforesaid position rather, in paragraph 10 of the written statement, he
admits the position that he is tenant of a shop described at the bottom of the plaint at the rate of Rs.
500/- per month. Meaning thereby that even though it may not have been said in so many words so
as to become a clear admission that the property in dispute was part and parcel of House No. 1915,
as claimed by the landlord, but, nevertheless, there was no specific denial to the said plea by stating
that it was not part and parcel of the said premises as was claimed by the landlord. The amendment
application has been filed after recording of statement of the plaintiff-landlord meaning thereby that
the amendment was sought after commencement of the trial and, therefore, the rigors of the proviso
to Rule 17 of Order VI CPC became applicable.

14. Interpreting the embargo put by the proviso to Rule 17 of Order VI CPC, the apex court,
after examining the law, in the case of Vidyabai v. Padmalatha, (2009) 2 SCC 409, observed, in
paragraphs 10, 11 and 19 of the report, as follows:

"10. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002),
Parliament inter alia inserted a proviso to Order 6 Rule 17 of the Code, which reads as under:

"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."
98 INDIAN LAW REPORTS ALLAHABAD SERIES

It is couched in a mandatory form. The court's jurisdiction to allow such an application is
taken away unless the conditions precedent therefor are satisfied viz. it must come to a conclusion
that in spite of due diligence the parties could not have raised the matter before the commencement
of the trial.

11. From the order passed by the learned trial Judge, it is evident that the respondents
had not been able to fulfil the said precondition. The question, therefore, which arises for
consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on
which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure
envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu
of examination-in-chief of the witness, in our opinion, would amount to "commencement of
proceeding".

19. It is the primal duty of the court to decide as to whether such an amendment is
necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the
amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts
the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in
a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to
be existing, the court will have no jurisdiction at all to allow the amendment of the plaint."

15. In the case of J. Samuel v. Gattu Mahesh, (2012) 2 SCC 300, in paragraphs 18, 19 and
20 of the report, the apex court, summarizing the law relating to amendment in the pleadings,
observed as follows:

"18. The primary aim of the court is to try the case on its merits and ensure that the rule
of justice prevails. For this the need is for the true facts of the case to be placed before the court so
that the court has access to all the relevant information in coming to its decision. Therefore, at
times it is required to permit parties to amend their plaints. The court's discretion to grant
permission for a party to amend his pleading lies on two conditions, firstly, no injustice must be
done to the other side and secondly, the amendment must be necessary for the purpose of
determining the real question in controversy between the parties. However, to balance the interests
of the parties in pursuit of doing justice, the proviso has been added which clearly states 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."

19. Due diligence is the idea that reasonable investigation is necessary before certain
kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the
adjudicatory mechanism to attain an anticipated relief. An advocate representing someone must
engage in due diligence to determine that the representations made are factually accurate and
sufficient. The term "due diligence" is specifically used in the Code so as to provide a test for
5 All. Azad Chaudhary Vs Jai Kumar & Ors.

99
determining whether to exercise the discretion in situations of requested amendment after the
commencement of trial.

20. A party requesting a relief stemming out of a claim is required to exercise due
diligence and it is a requirement which cannot be dispensed with. The term "due diligence"
determines the scope of a party's constructive knowledge, claim and is very critical to the outcome
of the suit."

16. From the law noticed herein above, it is clear that in suits which have been instituted after
insertion of the proviso to Rule 17 of Order VI CPC, where the trial has commenced, the discretion
of the court to allow an amendment can be exercised only when 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.

17. Coming to the facts of the instant case, it is noticed that the evidence of the plaintiff had
already closed and, therefore, the trial had commenced and, as admittedly, the suit is of the year
2013, therefore the proviso to Rule 17 would come into play. Now, the question that arises for
consideration is whether the defendant revisionist has succeeded in demonstrating that despite due
diligence the amendment sought could not have been brought before the commencement of the
trial. In the instant case, there is not even a whisper in the amendment application, which is on
record, to disclose that despite due diligence the amendment as was being sought in the written
statement could not have been sought before the commencement of the trial.

18. At this stage, learned counsel for the revisionist submitted that the amendment was
necessitated by virtue of amendment allowed in the plaint whereby the landlord was permitted to
amend paragraph 3 of the plaint so as to make a statement that the accommodation in dispute was
constructed in the year 2002 instead of 2004 as recorded earlier. He further submitted that the
amendment was necessitated also because the landlord had produced documentary evidence to
show that the House No. 1915 was first assessed in the year 2002.

19. The aforesaid contention of learned counsel for the revisionist does not inspire confidence
inasmuch as even if the shop had been constructed in the year 2004, the provisions of the U.P. Act
No. 13 of 1972 would not be attracted because the said provisions are not attracted to any building
that have been constructed after 26.4.1985. Accordingly, the plea that the amendment in the written
statement was necessitated by virtue of the amendment in the plaint cannot be accepted. So far as
the contention that the amendment was necessitated because of production of documentary
evidence by the plaintiff is concerned, the same also cannot be accepted because the evidence is
always to be led consistent with the pleading of the party. The plaintiff-landlord's case from the
very beginning had been that the premises in question was part and parcel of House No. 1915 and
the said accommodation was out of the purview of the U.P. Act No. 13 of 1972 as it had been
constructed in the year 2004 (which was altered by amendment to read 2002), therefore leading of
evidence that the building was first assessed in the year 2002 was not a factor which necessitated
the amendment because the plea was already there on record that the building was out of purview
100 INDIAN LAW REPORTS ALLAHABAD SERIES
of the UP Act No.13 of 1972. This court is therefore of the firm view that the amendment sought by
the defendant was hit by the proviso to Rule 17 of Order VI CPC therefore its rejection calls for no
interference.

20. The revision is dismissed.
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APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.08.2016

BEFORE

THE HON'BLE RITU RAJ AWASTHI, J.

Second Appeal Defective No.- 178 Of 2014

Ram Lakhan & Ors. ...Appellants
Versus
Raebareli Vikas Pradhikaran & Ors. ...Respondents

Councel For Appellants:
Prashant Singh Gaur, Ankit Srivastava

Councel For Respondents:
Hari Om Singh,Mohd. Aslam Khan, Dwijendra Mishra

HELD:-

A person who was not a party to the proceedings before the Trial Court or the First Appellate Court can
maintain an appeal with leave of the Court, provided such person is a "person aggrieved" by the
decree.

A "person aggrieved" is one whose legal rights are prejudicially or adversely affected by the
judgment or decree, and not one who suffers merely a psychological or imaginary injury.

Sections 96 and 100 CPC do not restrict the right of appeal only to parties on record; any person
prejudicially affected by a decree may appeal with leave of the appellate court.

A transferee pendente lite is not rendered illegal or void ab initio by Section 52 of the Transfer of Property
Act; such transfer remains subordinate to the rights declared in the decree.

A lis pendens transferee:

Is bound by the decree passed in the pending litigation;

Steps into the shoes of the transferor;

May seek leave of the Court to be impleaded or to maintain an appeal if his interest is substantial.