# Shiv Ji Agrahari v. Smt. Urmila Srivastava. & Anr

- **Citation:** (2024) 4 ILRA 769
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-21
- **Bench:** Ashutosh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-ji-agrahari-v-smt-urmila-srivastava-anr-51851
- **Pages:** 4

## Headnote

Law
-
The
Code
of
Civil
Procedure, 1908 - Amendment in Written
Statement - Constitution of India - Article
227 - The Transfer of Property Act 1882 -
Sections 106 - Notice to Quit, Section 114
- Relief Against Forfeiture for NonPayment of Rent, Provincial Small Cause
Courts Act - Section 25 - Relief under
Section 114 of the Transfer of Property
Act applies only where the lease is
determined by forfeiture due to nonpayment of rent, and not where tenancy is
terminated by a simple notice under
Section 106 of the Act. (Para 9, 10)

Petitioner (Tenant) faced eviction and recovery
proceedings - filed a written statement -
denying plaint averments - later sought to
amend written statement - to incorporate a plea
of protection under Section 114 of Transfer of
Property Act - claiming arrears of rent and
damages following termination of tenancy by a
notice under Section 106 of Transfer of Property
Act - claiming protection based on arrear
deposits
-
revisional
court
-
rejecting
amendment
application
as
unnecessary
-
prompted petitioner to challenge the order.
(Paras - 2, 3, 4, 8)

HELD: - Proposed amendment being totally
misconceived and unnecessary was rightly
rejected by Revisional Court. There was no
requirement of mentioning the Section 114 in
the written statement. It was only essential to
plead complete deposit as required under the
Section. Complete pleadings had already been
taken in the written statement filed by the
petitioner. (Para -11,12)

Petition dismissed. (E-7)

List of Cases cited:

## Text

4 All. Shiv Ji Agrahari Vs. Smt. Urmila Srivastava. & Anr.
769
एक अखन्तम अवसर सदनािंक 17-01-2017 के
सलए सदया जाता है।

लघुवाद न्यायािीश/सससवल जज सी०सड०"

10. From the perusal of order dated
09.12.2016, it is apparently clear that Court
was inclined to reject the application 97(c),
but due to typographical error in operative
portion, in place of word 'सनरस्त', word,
'स्वीकार' has been typed and while correcting
the same vide order dated 16.03.2017, Court
concerned has held that if there is
typographical error in the order, it can be
rectified under the provisions of Section 152
CPC. Further, after going through the
application 97(c) as well as order dated
09.12.2016, Revisional Court has also held
that at any stage, order may be rectified.

11. Impugned order has been passed
exercising power under Section 152 of CPC.
For ready reference, Section 152 of CPC is
quoted below:-

"Amendment
of
judgments,
decrees or orders.- Clerical or arithmetical
mistakes in judgments, decrees or orders or
errors arising therein from any accidental slip
or omission may at any time be corrected by
the Court either of its own motion or on the
application of any of the parties."

12. After going through Section 152 of
CPC, this Court is of the considered view that
in case of any type of bonafide error
including typographical error in the order,
same can be rectified at any stage under the
provisions of Section 152 of CPC.

13. So far as acceptance of cost is
concerned, in present facts of case, that will
not create any estoppel in favour of petitioner
for detailed reasons given in foregoing
paragraph.

14. Learned counsel for petitioner has
placed reliance upon the judgment of
Krishna Kumar Khanna(Supra) which is
not applicable in the present case as the facts
are entirely different as in that matter,
complete order has been challenged, but here
in this case, only application has been filed
for rectification of typographical error of
order dated 09.12.2016.

15.

Therefore,
under
such
circumstances, this Court is of the firm view
that earlier order dated 09.12.2016 is having
typographical error and same has been rightly
rectified vide order dated 16.03.2017 which
was also affirmed by the Revisional Court
vide its order dated 14.11.2017.

16. Accordingly, writ petition lacks
merit and is dismissed.

17. No order as to costs.

18. Respondents are directed to refund
double amount of cost i.e. Rs. 1,000/- to the
petitioner within two weeks from the date of
this order, which was earlier imposed vide
order dated 09.12.2016.
----------
(2024) 4 ILRA 769
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.03.2024
BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Matters U/A 227 No.3635 of 2024 (Civil)

Shiv Ji Agrahari ...Petitioner
Versus
Smt. Urmila Srivastava. & Anr.
 ...Respondents
770 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Sri Syed Wajid Ali

Counsel for the Respondents:
Sri Ashwani Kumar Pathak

(A)
Civil
Law
-
The
Code
of
Civil
Procedure, 1908 - Amendment in Written
Statement - Constitution of India - Article
227 - The Transfer of Property Act 1882 -
Sections 106 - Notice to Quit, Section 114
- Relief Against Forfeiture for NonPayment of Rent, Provincial Small Cause
Courts Act - Section 25 - Relief under
Section 114 of the Transfer of Property
Act applies only where the lease is
determined by forfeiture due to nonpayment of rent, and not where tenancy is
terminated by a simple notice under
Section 106 of the Act. (Para 9, 10)

Petitioner (Tenant) faced eviction and recovery
proceedings - filed a written statement -
denying plaint averments - later sought to
amend written statement - to incorporate a plea
of protection under Section 114 of Transfer of
Property Act - claiming arrears of rent and
damages following termination of tenancy by a
notice under Section 106 of Transfer of Property
Act - claiming protection based on arrear
deposits
-
revisional
court
-
rejecting
amendment
application
as
unnecessary
-
prompted petitioner to challenge the order.
(Paras - 2, 3, 4, 8)

HELD: - Proposed amendment being totally
misconceived and unnecessary was rightly
rejected by Revisional Court. There was no
requirement of mentioning the Section 114 in
the written statement. It was only essential to
plead complete deposit as required under the
Section. Complete pleadings had already been
taken in the written statement filed by the
petitioner. (Para -11,12)

Petition dismissed. (E-7)

List of Cases cited:

1. 2006 (3) ARC 329

2. 2000 (2) ACJ 1021
3. 2007 ACJ 2278

4. 2008 ACJ 2219

5. 1996 (1) ACJ 454

(Delivered by Hon'ble Ashutosh
Srivastava, J.)

1. Heard Shri Syed Wajid Ali, learned
counsel for the petitioner and Shri A.K.
Pathak, learned counsel for the caveatorrespondent no. 2.

2. The challenge in this petition, under
Article 227 of the Constitution of India, is to
the order dated 08.01.2024 passed by the
learned Additional District Judge/Court No.
6, Gorakhpur, in SCC Revision No. 38 of
2022
whereby
and
whereunder
the
amendment
application
moved
by
the
petitioner seeking amendment in the written
statement at the Revisional Stage has been
rejected.

3. It is the case of the petitioner that he
is a tenant in a premises let out to his
deceased father in the year 2004 initially at
Rs. 680/- per month subsequently enhanced
to Rs. 1800/- per month. The premises is
newly constructed and the provisions of the
UP Act No. 13 of 1972 are not applicable.
The landlord/respondents have instituted a
SCC Suit, being SCC Suit No. 4 of 2015 for
his eviction and recovery for arrears of rent
and
damages.
The
petitioner
put
in
appearance in the proceedings and filed his
written
statement
denying
the
plaint
averments and specifically stating in para 22
of the written statement that on 28.03.2016
with the permission of the Court a sum of Rs.
33,000/- has been deposited and he has been
depositing the rent for further months which
is not being accepted by the landlord/
respondents. Since the amount of Rs.
33,000/- stands deposited the petitioner is
entitled to benefit of Section 20 (4) of the
4 All. Shiv Ji Agrahari Vs. Smt. Urmila Srivastava. & Anr.
771
Act. The learned Judge Small Cause Court
vide
the
judgment
and
order
dated
12.04.2022 has decreed the suit directing the
petitioner to handover vacant possession of
the tenanted premises within 30 days and also
pay rent @ Rs. 1080/- per month from the
date of filing of the suit till the date of
handing over of possession. The learned
Judge Small Cause Court has also held that
the provisions of U.P. Act No. 13 of 1972
does not apply. Aggrieved, the petitioner has
filed a SCC Revision under Section 25 of the
Provincial Small Cause Courts Act which has
been registered as SCC Revision No. 38 of
2022.

4. It is contended by learned counsel for
the petitioner that the petitioner has moved an
application seeking amendment in the written
statement by incorporating the plea that his
tenancy is protected under Section 114 of the
Transfer of Property Act as the entire arrears
of rent and damages together with interest
thereon amounting to Rs. 33,000/- has been
got deposited. The amendment application
has been rejected by the impugned order after
contest by the landlord/respondents.

5. Learned counsel for the petitioner
has vehemently argued that the rejection of
the amendment application (paper No. 9A2)
by the Revisional Court is patently erroneous
and the same is liable to be set aside. The
amendment sought for is purely legal in
nature and does not change the nature of the
relief sought in the suit or the stand taken in
the written statement. The Revisional Court
while rejecting the Amendment has simply
rejected the amendment application only on
the ground that it ought to have been filed
before the Court of first instance and what
ever reason that has been stated in the
amendment application are not liable to be
accepted, without recording any findings
regarding any reasons that the proposed
amendment was withdrawing an admission or
that it was not necessary for deciding the real
controversy involved in the matter between
the parties. It is accordingly prayed that the
impugned order be set aside and the
amendment application be allowed. Reliance
has been placed upon a decision of coordinate
Bench reported in 2006 (3) ARC 329.

6. Per contra, Shri A.K. Pathak, learned
counsel
for
the
caveator/
landlord/respondents has opposed the petition
by submitting that the petition as framed is
misconceived and is liable to be dismissed at
the threshold. No illegality or irregularity has
been committed by the Revisional Court in
rejecting the amendment application. The
petition is devoid of merits and is liable to be
rejected.

7. I have heard the learned counsel for
the parties and have perused the records.

8. From the averments made in the
plaint it is borne out that the SCC Suit has
been filed for eviction and for recovery of
damages for use and occupation after
terminating the tenancy by registered notice
dated 04.03.2015 under Section 106 of the
Transfer of Property Act. The eviction has
not been sought on the basis of default. The
Provisions of the UP Act No. 13 of 1972 is
stated to be not applicable and the learned
Judge Small Cause Court has also proceeded
to hold as such. In the written statement filed
a defence has been taken in para 22 that a
sum of Rs. 33,000/- vide Challan No. G0300602 dated 28.03.2015 regarding the rent
along with cost of the suit, interest etc. for the
period April 2015 to April 2016 has been
deposited. In para 27 of the written statement
it has been stated that the provisions of UP
Act No. 13 of 1972 are applicable and the
tenant/petitioner is entitled to the benefit of
section 20 (4) of the Act. In the memo of
Revision the finding of the learned Judge
Small Cause Court that the provisions of UP
Act No. 13 of 1972 are not applicable has not
been challenged though a ground has been
772 INDIAN LAW REPORTS ALLAHABAD SERIES
taken that on the first date of hearing a sum
of Rs. 33,000/- towards rent and cost of suit,
interest has been got deposited and the rent
every month is being deposited, no default has
been committed and petitioner is entitled to the
benefit of Section 20 (4) of the Act. By way of
the amendment at the Revisional stage the
tenant/ petitioner intended to incorporate the
plea of protection of Section 114 of the Transfer
of Property Act.

9. This takes the Court to dwell into the
question as to whether benefit of Section 114 of
Transfer of Property Act as sought to be
claimed by the petitioner can be granted.
Section 114 of the Transfer of Property Act is
reads as under:

"114. Relief against forfeiture for
non-payment of rent.-

Where a lease of immoveable
property has determined by forfeiture for nonpayment of rent, and the lessor sues to eject the
lessee, if, at the hearing of the suit, the lessee
pays or tenders to the lessor the rent in arrear,
together with interest thereon and his full costs
of the suit, or gives such security as the Court
thinks sufficient for making such payment
within fifteen days, the Court may, in lieu of
making a decree for ejectment, pass an order
relieving the lessee against the forfeiture; and
thereupon the lessee shall hold the property
leased as if the forfeiture had not occurred."

10. From the perusal of the Provision 114
of the Transfer of Property Act it is apparent
that it is attracted only where a lease of
immovable property is determined by forfeiture
and not otherwise. In the case at hand, the
tenancy of the petitioner has been determined
by means of a simple notice under Section 106
of Transfer of Property Act. There is neither a
case for forfeiture of tenancy nor there is an
agreement which is a prerequisite condition for
the applicability of Section 114 of Transfer of
Property Act. In the opinion of the Court and as
is also borne out from the import of Section 114
of Transfer of Property Act itself Section 114
applies to those cases where the landlord
invokes his rights under a forfeiture clause
under the agreement and determines the lease
by forfeiture and sues to eject the tenant on the
ground of forfeiture of lease. Admittedly this is
not the case at hand. The law in this regard has
been laid down in numerous decisions of this
Court some of them being 2000 (2) ACJ 1021,
2007 ACJ 2278, 2008 ACJ 2219 and 1996 (1)
ACJ 454.

11. Thus the proposed amendment being
totally misconceived and unnecessary was
rightly rejected by the Revisional Court.

12. There is yet one other aspect of the
matter. In the opinion of the Court there is no
requirement of mentioning the Section 114 in
the written statement and it is only essential to
plead complete deposit as required under the
Section. The Court finds that complete
pleadings in this regard has already been taken
in the written statement filed by the petitioner.

13. In this view of the matter also the
proposed amendment is totally unwarranted.

14. For the above reasons the Court finds
no merit in the petition. It is accordingly
dismissed.

15. No order as to costs.
----------
(2024) 4 ILRA 772
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.03.2024
BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.

Matters U/A 227 No. 6346 of 2022 (Civil)

State of U.P. & Ors. ...Petitioners
Versus
Shri Raj Veer Singh ...Respondent