# Col. (Retd.) Harpal Singh Dhillon & Ors v. District Judge, Lucknow & Ors

- **Citation:** (2019) 3 ILRA 833
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-01
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/col-retd-harpal-singh-dhillon-ors-v-district-judge-lucknow-ors-44834
- **Pages:** 12

## Headnote

law
-
Code
of
Civil
Procedure,1908 - Order 6 Rule 17challenge to-allowing application for
amendment of written statement-liberal
view cannot be taken after evidence has
started-the applicability of due diligence
would arise only in case new pleadings
are sought to be introduced by way of
amendment-it would not to applicable in
case amendment sought is only to
explain or buttress pleadings already on
record. (Para 11)

B. Order XIV Rule 5 of the code grants
absolute discretion to court concerned to
amend or frame additional issues on
such terms as it thinks fit and all such
amendments or additional issues as may
be necessary for determining matters in
controversy between parties.Although
said provisions clearly indicate discretion
of court concerned regarding framing of
additional issues but the same time such
additional issues cannot be framed on
whims and fancies of a party concerned
without even laying bare foundation for
framing
of
such
additional
issues
particularly when once issues have
already been framed and evidence has
started.(Para36,38,39)

Petition disposed of (E-6)

List of cases cited:-

## Text

3 All. Col.(Retd.) Harpal Singh Dhillon & Ors. Vs. District Judge Lucknow & Ors.
833

"8. The second equally relevant
matter is that when a statutory functionary
makes an order based on certain grounds, its
validity must be judged by the reasons so
mentioned and cannot be supplemented by
fresh reasons in the shape of affidavit or
otherwise. Otherwise, an order bad in the
beginning may, by the time it comes to court
on account of a challenge, get validated by
additional grounds later brought out. We may
here draw attention to the observations of
Bose, J. in Gordhandas Bhanji[Commr. of
Police, Bombay v. Gordhandas Bhanji, AIR
1952 SC 16] :

"Public orders, publicly made, in
exercise of a statutory authority cannot be
construed in the light of explanations subsequently
given by the officer making the order of what he
meant, or of what was in his mind, or what he
intended to do. Public orders made by public
authorities are meant to have public effect and are
intended to affect the actings and conduct of those
to whom they are addressed and must be
construed objectively with reference to the
language used in the order itself."

20. Attention of the Court has also been
drawn towards Circular No. 27 of 2014 dated
10th May, 2014 issued by Director General of
Police related to the transfer of investigation. In
para 2(iv) of the said Circular, it is provided
that on the request of the accused,
investigation should not be transferred in
the ordinary circumstances. In para 2(x) of
the Circular, it is categorically provided that
the order by which investigation of a case
has been transferred, must be a speaking
order.

It
is
apparent
from
the
impugned order that neither it is a
reasoned order nor is speaking one.

21. The chargesheet of Case Crime
No.208 A of 2015 was challenged before
this Court in Criminal Misc. Case
No.4921 of 2018 (Anil Kumar Singh Vs.
State of U.P. and Ors.) which was
dismissed on 13.08.2018 by this Court
and the court below has taken cognizance.

22. In view of the aforesaid facts
and discussion, the petition is allowed and
the order dated 19.06.2018 passed by
Special Secretary, Home, Government of
U.P.
Lucknow
placed
on
record
(Annexure-1)
and
all
consequent
proceedings are hereby quashed.

23. The trial court is directed to
conclude the trial of Case Crime No.208
A of 2015 under Sections 307, 325, 323,
504 I.P.C. and Section 152 Railways Act,
Police
Station
G.R.P.
Gonda,
expeditiously
without
giving
any
unnecessary adjournment. The Senior
Registrar of this Court is directed to send
the copy of this order to the court
concerned for strict compliance.

24. The Bench Secretary will ensure
that the original record in relation to
impugned order be handed over to Mr.
S.P. Singh, (A.G.A.) forthwith.
----------
(2019)11ILR A833

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.11.2019

BEFORE
THE HON'BLE MANISH MATHUR, J.

Misc. Single No. 40 of 2013 and Misc. Single
No. 843 of 2013

Col. (Retd.) Harpal Singh Dhillon & Ors.
 ...Petitioners
Versus
District Judge, Lucknow & Ors.
 ...Respondents
834 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioners:
Sri Rama Kant Sharma, Sri Apoorva Tiwari

Counsel for the Respondents:
Sri Manish Kumar, Sri Nishant Verma, Sri
Shikhar Anand

A.
Service
law
-
Code
of
Civil
Procedure,1908 - Order 6 Rule 17challenge to-allowing application for
amendment of written statement-liberal
view cannot be taken after evidence has
started-the applicability of due diligence
would arise only in case new pleadings
are sought to be introduced by way of
amendment-it would not to applicable in
case amendment sought is only to
explain or buttress pleadings already on
record. (Para 11)

B. Order XIV Rule 5 of the code grants
absolute discretion to court concerned to
amend or frame additional issues on
such terms as it thinks fit and all such
amendments or additional issues as may
be necessary for determining matters in
controversy between parties.Although
said provisions clearly indicate discretion
of court concerned regarding framing of
additional issues but the same time such
additional issues cannot be framed on
whims and fancies of a party concerned
without even laying bare foundation for
framing
of
such
additional
issues
particularly when once issues have
already been framed and evidence has
started.(Para36,38,39)

Petition disposed of (E-6)

List of cases cited:-

1. Ajendraprasadji N. Pandey and Anr. Vs.
Swami Keshavprakashdasji N. And Ors (2006)
12 SCC 1

2. J. Samuel and Ors. Vs. Gattu Mahesh and
Ors (2012) 2 SCC 300

3. Vidyabai and Ors. Vs. Padmalatha and Anr.
(2009) 2 SCC 409
4. State of U.P. and Anr. Vs. Synthetics and
Chemicals Ltd. And Anr. (1991) 4 SCC 139

5. Sardar Gurcharan Singh Vs. Ist Additional
District Judge,Kanpur and Ors.,1994 (1) ARC
546

6. M. Revanna Vs. Anjananna(Dead) by Legal
Representatives and Ors (2019) 4 SCC 332

7. Baldev Singh and Ors Vs. Manmohan Singh
and another(2006) 6 SCC 498

8. Sushil Kumar Jai Vs. Manoj Kumar and Anr.
2009 LCD 1096

9. Reevajeetu Builders and Developers Vs.
Narayanswamy and sons and Ors.,(2009) 10
SCC 84

(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Sri Apoorva Tiwari,
learned counsel for plaintiff/lessors and
Sri Shikhar Anand, learned counsel
appearing on behalf of defendants/lessee,
Hindustan
Petroleum
Corporation
Limited.

2. Lis with regard to property and
parties being same, both petitions were
clubbed earlier by orders of this Court
and are therefore being decided by this
common judgment.As per admitted facts,
plaintiff/lessors filed Regular Suit No.167
of 2009 of property in question along
with prayer for recovery of damages for
use and occupation against defendants at
market rate. Defendants filed their written
statement
on
30.06.2009
in
which
pecuniary jurisdiction of court concerned
was challenged. Subsequently issues were
framed on 15.02.2010 in which issue no.4
pertained to pecuniary jurisdiction of
court concerned which was decided as a
preliminary issue in favour of plaintiffs
vide order dated 29.01.2011, which
became final since no challenge to it was
3 All. Col.(Retd.) Harpal Singh Dhillon & Ors. Vs. District Judge Lucknow & Ors.
835
made. Thereafter, evidence of plaintiffwitness 1 started on 15.02.2011. On same
date, defendants filed an application for
framing of additional issue with regard to
jurisdiction of court concerned to hear the
suit. Objections dated 01.03.2011 were
filed by plaintiff(s) objecting to framing
of additional issues on ground that no
plea with regard to jurisdiction had been
taken
in
written
statement.
Said
application was rejected by means of
order dated 25.10.2011 primarily on the
ground that no such pleading regarding
jurisdiction of court had been taken in
written statement. Civil Revision No.169
of 2012 against order dated 25.10.2011
was
dismissed
vide
order
dated
10.07.2012 on the ground that revision
against
such
an
order
was
not
maintainable, against which Writ Petition
No. 843(M/S) of 2013 has been filed.

3. In the meantime, after rejection of
application for framing of additional
issues vide order dated 25.10.2011,
defendants filed an application dated
30.01.2012 for amendment of written
statement, particularly paragraph 4 to
indicate that suit was barred in terms of
Section 29-A of U.P. Act No.13 of 1972.
Objections to said application were filed
by plaintiffs on 01.03.2012. Vide order
dated
27.08.2012,
application
for
amendment of written statement was
allowed and Civil Revision No.270 of
2012 was also rejected by means of order
dated 11.10.2012, against which Writ
Petition No. 40(M/S) of 2013 has been
filed.

Writ Petition No. 40(M/S) of
2013

4. Present petition has been filed by
plaintiff/lessors against orders allowing
application for amendment of written
statement. Learned counsel for petitioner
has raised challenge to said orders
primarily on the ground that after
amendment of Order 6 Rule 17 Code of
Civil
Procedure,
1908
(hereinafter
referred to as the ''Code'), since no
averment whatsoever has been made in
application seeking amendment, with
regard to ''due diligence' on part of
defendants requiring it to indicate reasons
why such pleading was not taken prior to
start of evidence. It has been submitted
that such a liberal approach towards
amendment
cannot
be
taken
after
evidence has started. Learned counsel for
petitioner has also submitted that there is
no averment in either written statement or
in
application
seeking
amendment
regarding applicability of U.P. Act No.13
of 1972(hereafter referred to as the ''Act')
and consequently amendment seeking
incorporation of paragraph with regard to
Section 29-A of the Act would not be
maintainable in such circumstances. It has
also been submitted that case law for
consideration of applications regarding
amendment
in
written
statement
enunciated by this Court has been
incorrectly applied.

5. Per contra, learned counsel for
opposite parties has submitted that there
was no question of indicating due
diligence on part of defendants since plea
with regard to lack of jurisdiction of court
concerned had already been taken in
paragraph 42 of written statement and
such plea was taken separately from plea
pertaining to lack of jurisdiction on
ground of undervaluation. It has also been
submitted
that
lack
of
inherent
jurisdiction of court concerned goes to
very root of matter and can be raised at
any stage. It has also been submitted that
836 INDIAN LAW REPORTS ALLAHABAD SERIES
even otherwise due diligence on part of
defendants has already been indicated in
amendment application. Learned counsel
has further submitted that amendment
sought in written statement has merely
substantiated and explained pleadings
already taken in written statement and
even otherwise no prejudice would be
caused
to
plaintiffs
in
case
such
amendment is allowed in view of fact that
evidence has barely started. He has
further submitted that requirement of
amending written statement occurred only
after application for framing of additional
issues was rejected on the ground that
pleadings with regard to same are not
available in written statement. Learned
counsel for opposite parties has further
submitted that pleadings with regard to
applicability of Section 29-A of the Act
were already on record since plaintifflessors themselves had pleaded in the
plaint that initially property in question
was leased out as an open land whereafter
lessee had made permanent constructions
with knowledge and consent of lessors
thereby granting protection to tenant from
eviction in terms of Section 29-A of the
Act. He has drawn attention to contents of
plaint
and
written
statement
to
substantiate his arguments with the
submission that once such a situation was
admitted by plaintiffs, there was no
occasion for defendant-lessee to have
raised it separately in written statement
and had merely admitted the same. As
such, he has submitted that framing of
additional issue regarding jurisdiction of
court in terms of Section 29-A of the Act
would be imperative and provision
regarding ''due diligence' would be
inapplicable in present case.

6. Heard learned counsel for parties
and perused the record.

7. For proper adjudication of present
dispute, it would be relevant that
provisions of Order VI Rule 17 of the
Code and Section 29-A of the Act be
considered. Same (relevant portion) are as
follows:-

Order VI Rule 17 of the Code
of Civil Procedure, 1908

"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 is spite of
due diligence, the party could not have
raised
the
matter
before
the
commencement of trial."

Section 29-A of U.P.Act No.13
of 1972

"29-A.
Protection
against
eviction to certain classes of tenants of
land on which building exists.-(1)
.......................................

(2) This section applies only to
land let out, either before or after the
commencement of this section, where the
tenant, with the landlord's consent has
erected any permanent structure and
incurred expenses in execution thereof.

(3).......................................

(4) .......................................

(5) .......................................

(6)(a) .......................................

(b) .......................................

(c) .......................................

(d) .......................................

(7) .......................................
3 All. Col.(Retd.) Harpal Singh Dhillon & Ors. Vs. District Judge Lucknow & Ors.
837

Explanation.-
......................................."

8. A perusal of order dated
27.08.2012
allowing
amendment
application makes it clear that amendment
application has been allowed primarily on
the ground that a legal plea such as is
being taken by defendants can be raised at
any stage, does not change nature of suit,
does
not
cause
any
prejudice
to
plaintiff(s) and can be compensated by
costs. Revisional court has also not
interfered with order dated 27.08.2012
primarily on the ground that legal pleas
can be raised at any stage. For allowing
such an application, both the courts below
have relied upon a decision rendered by
this Court in Jawahar Singh v. Vedpal
reported in 2012 (2) ARC 179.

9. So far as submission of learned
counsel for plaintiff/lessors is concerned
regarding pleading of ''due diligence' on part
of party seeking amendment that it could not
have raised the matter before commencement
of trial is concerned, a reading of amendment
application indicates that plea has been raised
that it is admitted fact as pleaded in plaint that
permanent construction was raised over
disputed property as per lease agreement
thereby covering disputed property under
Section 29-A of the Act due to which
application for framing of additional issues
had been filed. It has been further stated that
need for filing of amendment application
arose in view of fact that application for
framing of additional issues regarding
jurisdiction of court had been rejected on the
ground that defendants had not indicated plea
of jurisdiction in detail.

10. A reading of plaint clearly
indicates pleadings raised by plaintifflessors that they are owners and landlords
of Khasra Plot No.103 which was let out
on
01.01.1971
to
Esso
Eastern
Incorporated
on
a
yearly
rent
of
Rs.4,000/- by means of a registered lease
deed
executed
between
parties
on
09.06.1972. It has also been averred that
as per agreement of lease, the lessee Esso
Eastern Incorporated raised permanent
construction over the land to run petrol
pump. It has been further stated that Esso
Eastern Incorporated was acquired and
amalgamated with Hindustan Petroleum
Corporation Ltd. and as such the lease
and
lease
rights
of
Esso
Eastern
Incorporated vested and continued with
Hindustan Petroleum Corporation Ltd on
same terms and conditions as per original
agreement of lease. Said averments made
in plaint were simply admitted in written
statement without any further elaboration.

11. So far as submissions of learned
counsel
for
petitioner
regarding
applicability of term ''due diligence' is
concerned, a reading of proviso appended
to Order VI Rule 17 of the Code makes it
evident that court concerned will have to
come to a conclusion regarding due
diligence of party seeking amendment as
to why amendment sought could not have
been raised before commencement of
trial. The proviso as such makes it
obvious
that
applicability
of
due
diligence would arise only in case new
pleadings are sought to be introduced
by way of amendment. Naturally, as a
corollary, provisions regarding due
diligence would not be applicable in
case amendment sought is only to
explain or buttress pleadings already
on record.

12. In the present case, a reading of
plaint, written statement and provisions of
Section 29-A of the Act makes it clear
838 INDIAN LAW REPORTS ALLAHABAD SERIES
that
pleadings
regarding
raising
of
permanent construction over the property
with knowledge and consent of lessors
were already on record as pleaded in the
plaint and admitted in written statement.
As such, it is clear that by means of
amendment application, no new ground or
pleading was sought to be introduced by
defendant and nature of amendment was
only to buttress pleadings which were
already on record. In such circumstances,
there was no occasion for court concerned
to have come to a conclusion regarding
due diligence of defendants in filing
amendment application. Similarly, there
was no occasion for defendants to have
pleaded due diligence while submitting
amendment application.

13. A reading of amendment
application makes reason for its filing
clear that despite such pleadings already
on
record,
filing
of
amendment
application was made necessary owing to
rejection of application for framing of
additional issues regarding jurisdiction of
court concerned in view of Section 29-A
of the Act. It was in these circumstances,
that filing of amendment application was
required merely to buttress pleadings that
were already on record. The same was
also required to be done in view of order
dated 25.10.2011 rejecting application for
framing of additional issues only on
ground that no such pleadings as
envisaged under Section 29-A of the Act
have been made by defendants.

14.

Learned
counsel
for
petitioner/lessors
has
relied
upon
judgment of Hon'ble the Supreme Court
rendered in Ajendraprasadji N.Pandey
and
another
v.
Swami
Keshavprakeshdasji N. and others
reported in (2006) 12 SCC 1 in which
amendment application was rejected on
ground that no fact was pleaded nor any
ground raised in amendment application
to even remotely contend that despite
exercise of due diligence the matter could
not be raised by appellants. It has also
been held that trial is deemed to
commence when issues are settled and
case is set down for recording of
evidence.

15. In respectful opinion of this
Court, the said judgment would be
inapplicable,
since
as
already
seen
hereinabove in the present case, pleadings
regarding circumstances for filing of
amendment applications have already
been indicated in amendment application
itself that it was required to be filed on
account of rejection of application for
framing of additional issues on ground
that there was no such pleading by
defendants, which however were already
on record.

16. Learned counsel for petitioner
while buttressing his submissions regarding
due diligence has also relied upon decisions
rendered by Hon'ble the Supreme Court in J.
Samuel and others v. Gattu Mahesh and
others reported in (2012) 2 SCC 300 and
Vidyabai and others v. Padmalatha and
another reported in (2009) 2 SCC 409.
However, since it has already been held
herein above that amendment sought by
defendants was only to buttress pleadings
already on record, provision regarding due
diligence was neither required to be pleaded
nor seen by court concerned, aforesaid
judgments would also be inapplicable in
present case in said circumstances.

17. Learned counsel for petitioners
has also relied upon judgment rendered
by Hon'ble the Supreme Court in State of
3 All. Col.(Retd.) Harpal Singh Dhillon & Ors. Vs. District Judge Lucknow & Ors.
839
U.P. and another v. Synthetics and
Chemicals Ltd. and another reported in
(1991) 4 SCC 139 to substantiate his
submissions that reliance placed on
judgment
in
Jawahar
Singh
v.
Vedpal(supra) by both courts below while
allowing amendment application was
incorrect since said judgment did not lay
down any law and was therefore not in
the nature of any precedent. In said
judgment, Hon'ble the Supreme Court has
held that a decision which is not express
and is not founded on reasons nor
proceeds on consideration of issue cannot
be deemed to be a law declared to have a
binding effect as contemplated by Article
141 of Constitution of India. It has been
further held that ''precedents sub-silentio
and without argument are of no moment'.

18. So far as aforesaid judgment in
State of U.P. and another v. Synthetics
and Chemicals Ltd. and another(supra)
is concerned, it can be seen that same
would not be of any consequence in
present case inasmuch as orders of both
courts below are based not only on
judgment
in
Jawahar
Singh
v.
Vedpal(supra) but are also based on
provisions of Order VI Rule 17 of the
Code and law pertaining to same that
amendments particularly with regard to
written statements should be liberally
allowed since it does not cause any
prejudice to rights of plaintiffs. Further
more, amendments sought, have been
allowed on payment of cost. Judgment in
State of U.P. and another v. Synthetics
and Chemicals Ltd. and another(supra)
would have had grave implications for
defendants if orders impugned were based
only on judgment in Jawahar Singh v.
Vedpal(supra). That not being the case,
petitioner would not derive any benefit
from law laid down in State of U.P. and
another v. Synthetics and Chemicals
Ltd. and another(supra).

19. Learned counsel for petitioners
has relied upon judgment rendered by this
Court in Sardar Gurcharan Singh v. Ist
Additional District Judge, Kanpur and
others reported in 1994 (1) ARC 546 to
buttress his submissions that provisions of
Section 29-A of the Act would be
inapplicable in present case. In considered
opinion of this Court, applicability or
otherwise of Section 29-A of the Act is
not a material fact to be seen at the time
of
consideration
of
amendment
application. Such submissions regarding
applicability of Section 29-A of the Act
can definitely be raised by petitioners, if
and when, issues regarding same are
framed and considered by trial court. As
such, judgment in Sardar Gurcharan
Singh v. Ist Additional District Judge,
Kanpur and others(supra) would be of
no consequence in present stage of
dispute.

Legal aspects for courts to take
into
consideration
for
amendment
applications have already been dealt with
in detail by Hon'ble the Supreme Court in
a number of cases. The said propositions
have already been indicated in judgments
relied upon by learned counsel for
petitioners.

20. In Vidyabai and others(supra),
Hon'ble the Supreme Court has clearly
held that courts should allow amendments
that would be necessary to determine real
question of controversy between parties
but the same indisputably would be
subject to the condition that no prejudice
is caused to other side. It has been further
held that unless jurisdictional fact is
found to be existing, courts will have no
840 INDIAN LAW REPORTS ALLAHABAD SERIES
jurisdiction at all to allow amendment of
plaints. The relevant portions of aforesaid
judgment are as follows :

"18. Reliance has also been
placed by Ms Suri on Rajesh Kumar
Aggarwal v. K.K. Modi [(2006) 4 SCC
385] . No doubt, as has been held by this
Court therein that the court should allow
amendments that would be necessary to
determine the real question of the
controversy between the parties but the
same indisputably would be subject to the
condition that no prejudice is caused to
the other side."

"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."

21. In J. Samuel and others(supra),
Hon'ble the Supreme Court has held that
primary aim of courts is to try the case on
its merits and ensure that rules of justice
prevails. For this the need is for true facts
of the case to be placed before a court so
that it has access to all relevant
information in coming to its decision. It
has been held that courts' discretion to
grant permission for a party to amend his
pleading lies on two conditions : (a)
firstly no injustice must be done to the
other side; and (b)The amendment must
be
necessary
for
the
purpose
of
determining real question in controversy
between the parties.

22. Hon'ble the Supreme Court in
M.Revanna v. Anjananna (Dead) by
Legal
Representatives
and
others
reported in (2019) 4 SCC 332 has clearly
held that leave to amend may be refused
if it introduces a totally different, new and
inconsistent case, or challenges the
fundamental character of the suit. It has
been further held that though normally
amendments are allowed in pleadings to
avoid multiplicity of litigation, courts
need to take into consideration whether
application
seeking
amendment
is
bonafide
or
malafide
and
whether
amendment causes such prejudice to the
other side which cannot be compensated
adequately in terms of money. Relevant
paragraph of the said judgment is 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
3 All. Col.(Retd.) Harpal Singh Dhillon & Ors. Vs. District Judge Lucknow & Ors.
841
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."

23. Learned counsel appearing on
behalf of opposite party(s)/lessee while
substantiating his arguments has relied
upon judgment of Hon'ble the Supreme
Court of India rendered in Baldev Singh
and others v. Manmohan Singh and
another reported in (2006) 6 SCC 498
whereunder
it
has
been held
that
amendment of a plaint and amendment of
a written statement are not necessarily
governed by exactly the same principle
since adding a new ground of defence or
substituting or altering a defence does not
raise the same problem as adding, altering
or substituting a new cause of action.

24. Learned counsel has also relied
upon judgment rendered in Sushil Kumar
Jai v. Manoj Kumar and another reported
in 2009 LCD 1096 in which Hon'ble the
Supreme Court has allowed amendment of
written statement with the view that same
was permissible since appellant had sought
only to elaborate and clarify the earlier
inadvertence and confusion made in his
written statements. It has been held that even
assuming that there was admission made by
appellant in his original written statement,
then also such admission can be explained
by amendment of written statement even by
taking inconsistent pleas or substituting or
altering his defence.

25. Reliance has also been placed by
learned counsel for opposite party/lessee
on judgment rendered by Hon'ble the
Supreme Court in Reevajeetu Builders
and Developers v. Narayanaswamy and
sons and others reported in (2009) 10
SCC 84 in which points and factors to be
taken into consideration while dealing
with amendment application has been
summarised, which are as follows: -

"Para
63".
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

(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.

These are some of the important
factors which may be kept in mind while
dealing with application filed under Order
VI Rule 17. These are only illustrative
and not exhaustive."

26. From a reading of aforesaid
judgments of Hon'ble the Supreme Court,
the
factors
clearly
discernible
for
842 INDIAN LAW REPORTS ALLAHABAD SERIES
consideration of amendment in written
statement is that :

(a) It is to be seen whether
amendment sought is imperative for
proper and effective adjudication of case.

(b) the amendment should not
cause prejudice to other side which
cannot be adequately compensated in
terms of money.

(c)
amendment
to
written
statements are to be allowed in a much
more liberal fashion than amendment
made to plaints.

(d) amendments seeking merely
to elaborate or clarify earlier pleadings
already raised in written statements are to
be readily allowed.

(e) concept of ''due diligence'
would arise only in case new pleadings
are sought to be introduced by means of
amendment and the same would be
inapplicable in case only pleadings made
earlier are sought to be elaborated,
clarified or substantiated by means of
amendment.

(f)
amendment
sought
is
imperative for proper and effective
adjudication of the case.

27. Upon applicability of aforesaid
judgments in present case, following
features are quite evident :-

(a) amendment sought to be
introduced in written statement pertains to
applicability of Section 29-A of the Act,

(b) Section 29-A itself pertains
to applicability to land let out where
tenant with landlords' consent has erected
any permanent structure and incurred
expense in execution thereof,

(c) paragraphs 3 and 5 of plaint
clearly indicate that land was let out to
predecessor
in
interest
of
opposite
party/lessee over which lessee raised
permanent construction. Said paragraphs
have been blandly admitted in written
statement without any further elaboration,
and

(d)
amendment
application
seeks to introduce pleading regarding
applicability of Section 29-A of the Act in
view of admission of plaintiffs that only
land was let out to predecessor in interest
of lessee who was permitted to raise
permanent construction of petrol pump
building incurring huge expenses.

28. Aforesaid facts clearly indicate
that foundation of pleadings sought to be
incorporated by means of amendment
were already available on record in plaint
and were admitted in written statement.
Hence, it can be clearly seen that
amendment sought to be incorporated by
opposite party(s)/lessee was only to
elaborate and clarify pleadings that were
already on record.

29. Upon consideration of factors
indicated herein above, it is clear that
courts
below
correctly
allowed
amendment application since no prejudice
was caused to plaintiff/lessors who even
otherwise were compensated by grant of
cost.

30. In view of aforesaid, petition
being devoid of merit is dismissed.

Writ Petition No.843(M/S) of
2013

31. Present petition has been filed
against order dated 25.10.2011 rejecting
application for framing of additional
issues. Revisional order dated 10.07.2012
passed in Civil Revision No.169 of 2012
is also under challenge since it was
3 All. Col.(Retd.) Harpal Singh Dhillon & Ors. Vs. District Judge Lucknow & Ors.
843
dismissed on ground that revision against
an interlocutory order is not maintainable.

32. As indicated herein above,
petitioner/defendant-lessee
had
filed
application dated 15.02.2011 for framing
of additional issues to which objections
had been filed by opposite party/plaintifflessors that such an application should be
rejected on the ground that no such
pleading regarding jurisdiction of court
concerned has been raised in written
statement. It was also stated that issues
regarding jurisdiction of court concerned
pertaining to court fees had already been
decided which had become final and,
therefore, there was no occasion for
framing of additional issues.

33. Vide order dated 25.10.2011,
application for framing of additional
issues was thereafter rejected primarily on
the ground that no specific pleading
regarding lack of jurisdiction of court
concerned had been indicated in the
application. It was also held that plea
regarding jurisdiction of court pertaining
to pecuniary aspect such as court fees had
already been decided and, therefore, there
was neither occasion nor any new
substance to frame additional issues
regarding jurisdiction of courts.

34. Learned counsel appearing for
petitioner/defendant-lessee has submitted
that in paragraph 32 of written statement,
ground taken was that suit was highly
undervalued whereas in paragraph 42 it
was not only stated that suit was highly
undervalued for purposes of court fee but
also that it had been filed in court which
lacked jurisdiction to entertain present
suit which was therefore liable to be
dismissed on that ground alone. Learned
counsel for petitioner has therefore
submitted that separate pleadings had
been raised regarding jurisdiction of court
concerned inasmuch as challenge to
jurisdiction of pecuniary aspect regarding
undervaluation had been made separately
from lack of inherent jurisdiction of court
concerned which therefore required an
additional issue to be framed regarding
jurisdiction
of
court
concerned
to
entertain the suit. It has been submitted
that it was in these circumstances that
application had been filed regarding
framing of additional issues in view of
provisions of Order XIV Rule 5 of the
Code since such an issue went to the root
of matter.

35. Learned counsel appearing for
opposite party/plaintiff-lessors, however
refuting submissions advanced by learned
counsel for petitioner has argued that
application for framing of additional
evidence was correctly rejected by trial
court on account of fact that earlier issue
regarding undervaluation of suit had
already been decided vide order dated
29.01.2011 which was challenged in
revision and thereafter in Writ Petition
No.1561(M/S)
of
2012
which
was
subsequently dismissed as withdrawn
thereby rendering order dated 29.01.2011
deciding the issue, as final. He has further
submitted that in view of said fact, there
was no occasion to frame an additional
issue regarding jurisdiction of court
concerned particularly since no new
pleadings had been made in application
requiring framing of additional issue of
jurisdiction of court concerned. He has
further submitted that a reading of
paragraph 42 of written statement has to
be seen as a whole and not in a segregated
manner. Learned counsel has further
submitted
that
the
word
''and'
in
paragraph 42 of written statement is
844 INDIAN LAW REPORTS ALLAHABAD SERIES
conjunctive thereby requiring the entire
paragraph to be seen as a whole. As such,
it is submitted that no separate plea of
lack of jurisdiction of court concerned to
entertain the suit was taken and the only
ground for lack of jurisdiction pertained
to undervaluation of suit, which having
become final was not required to be
reopened by framing of additional issue.

36. A perusal of application filed
under Order XIV Rule 5 of the Code for
framing of additional issues indicates
complete lack of pleading regarding
requirement of framing of additional
issue. The only ground taken is that since
in paragraph 42 of written statement, an
averment has been made that the court
lacks
jurisdiction,
therefore,
such
additional issue is required to be framed.

37. A perusal of impugned order
dated 25.10.2011 clearly indicates that
application for framing of additional
issues has been rejected primarily on
account of fact that neither any specific
pleading nor averment has been made as
to
why
the
court
lacks
inherent
jurisdiction to hear the suit. However,
trial court has also granted liberty to
defendant/lessee to raise such ground in
future in case appropriate pleadings are
made.

38. Order XIV Rule 5 of the
Code grants absolute discretion to court
concerned to amend or frame additional
issues on such terms as it thinks fit and all
such amendments or additional issues as
may be necessary for determining matters
in controversy between parties.

39. Although said provisions clearly
indicate discretion of court concerned
regarding framing of additional issues but
at the same time such additional issues
cannot be framed on whims and fancies
of a party concerned without even laying
bare foundation for framing of such
additional issues particularly when once
issues have already been framed and
evidence has started.

40. In the present case, it can be
seen from a perusal of application for
framing of additional issues that even
bare minimum foundation has not been
laid for framing of additional issues
regarding inherent lack of jurisdiction of
court to entertain the suit. Even otherwise
trial court has already granted liberty to
defendant/lessee
to
file
appropriate
application in future for framing of
additional issues in case grounds for same
have been laid.

41. In view of aforesaid liberty
already granted by trial court and also in
view
of
fact
that
application
for
amendment of written statement has been
allowed, petition is disposed of in terms
of the order of trial court granting liberty
to
petitioner/defendant-lessee
to
file
appropriate application for framing of
additional issues in light of amendment
being allowed to written statement.
----------
(2019)11ILR A844

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.10.2019

BEFORE
THE HON'BLE MRS. SANGEETA CHANDRA, J.

Misc. Single No. 178 of 2014 alongwith Misc.
Single No. 3270 of 2014

C/M
Shrimat
Paramhans
Vidya
Prachariani Sabha & Ors. ...Petitioners

Versus