# Shree Ram Gupta Revisionst/Defendant v. Shafiquer Rahman & others

- **Citation:** (2010) 1 ILRA 14
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-01-27
- **Case number:** Civil Revision No. 482 of 2009
- **Bench:** Rajes Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shree-ram-gupta-revisionst-defendant-v-shafiquer-rahman-others-41509
- **Pages:** 4

## Headnote

Code of Civil Procedure order VI Rule 17Amendment of written statement After
17 month from the date of closing of
evidence-No
reason
given
for
not
approaching earlier amendment sought
regarding applicability of the provisions
of Act No. 13 of 1972- held not bona fide
application rightly rejected.

Held: Para -10

In the present case the evidence of both
the parties have been closed and the suit
was
fixed
for
final
hearing
and,
therefore, the trial had commenced. No
reason has been given that in spite of
the due diligence the applicant could not
have raised the plea taken in the
amendment application in the earlier
written statement. In the circumstances,
the petitioner is not entitled for the
benefit of the proviso to Order 6 Rule 17.
Case law discussed
2007 (3) ARC 410, 2009 (3) ARC 502, (2008)
7 S.C.C. 85.

## Text

14 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
setting out the practical regime of right to
information for citizens to secure access
to information under the control of public
authority. The provisions of the said Act
has to be implemented in a manner as to
achieve its object.

17. In view of the foregoing
discussions, we are satisfied that Central
Information Commissioner having not
adverted to the relevant reply submitted
by the petitioner and there being no
reason given in the order impugned, the
order dated 16th December, 2009 deserves
to be and is hereby set-aside remitting the
matter
to
the
Central
Information
Commissioner to pass fresh order in
accordance
with
law
expeditiously
preferably within a period of three months
from the date of production of a certified
copy of this order.

The writ petition is disposed of
accordingly.
---------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.01.2010

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Revision No. 482 of 2009

Shree Ram Gupta ...Revisionst/Defendant
Versus
Shafiquer Rahman & others ...Respondents

Counsel for the Revisionist:
Sri Subhash Chandra Tiwari

Counsel for the Opposite Parties:
Sri Saurabh Srivastava

Code of Civil Procedure order VI Rule 17Amendment of written statement After
17 month from the date of closing of
evidence-No
reason
given
for
not
approaching earlier amendment sought
regarding applicability of the provisions
of Act No. 13 of 1972- held not bona fide
application rightly rejected.

Held: Para -10

In the present case the evidence of both
the parties have been closed and the suit
was
fixed
for
final
hearing
and,
therefore, the trial had commenced. No
reason has been given that in spite of
the due diligence the applicant could not
have raised the plea taken in the
amendment application in the earlier
written statement. In the circumstances,
the petitioner is not entitled for the
benefit of the proviso to Order 6 Rule 17.
Case law discussed
2007 (3) ARC 410, 2009 (3) ARC 502, (2008)
7 S.C.C. 85.

(Delivered by Hon'ble Rajes Kumar, J.)

1. This revision is directed against
the order of the Judge, Small Causes
Court dated 3.10.2009 by which he has
rejected the amendment application filed
by the petitioner, who was defendant in
the suit.

2. The respondent filed S.C.C. Suit
No. 58 of 2004 for ejectment and arrears
of rent in which the petitioner was
defendant no. 1. The petitioner filed the
written statement and contested the case.
It appears that evidence of both the parties
have been closed on 10.7.2007 and
26.7.2007 was fixed for hearing. Further
an application under Order 15 Rule 5
C.P.C. was moved, which has not been
replied by the defendants. On 25.1.2008
the
petitioner-defendant
moved
an
application seeking permission to deposit
rent of Rs.20,000/-, which has been
allowed on 28.1.2008 and thereafter a
date was fixed for disposal of the
1 All] Shree Ram Gupta V. Shafiquer Rahman and others
15
application under Order 15 Rule 5 C.P.C.
On 2.4.2008, defendant no. 2 Shree Kant
Gupta,
filed
amendment
application
which has been rejected on 7.8.2008.
Shree Kant Gupta filed Revision No. 385
of 2008 before this Court against the said
order dated 7.8.2008 which has been
rejected by this Court on 20.10.2008.
Thereafter, on 2.2.2009, the petitionerdefendant no. 1, Shree Ram Gupta filed
amendment
application.
The
said
amendment application has been rejected
by the impugned order. The court below
has held that the amendment application
has been filed after one year seven
months from the date of the close of
evidence just to delay the proceeding. It
has been further observed that the
amendment application has been filed by
the petitioner after rejection of the earlier
amendment application filed by defendant
no. 2. The amendment application has
been rejected also on the ground that the
petitioner-defendant no. 1 by way of
amendment intended to resile with the
earlier admission and the pleadings taken
in the written statement. On these grounds
it has been held that the amendment
application was moved to delay the
proceeding with mala fide intention.

3. Heard Sri S.C. Tiwari, learned
counsel for the applicant, and Sri Saurabh
Srivastava appearing on behalf of the
respondents.

4. Learned counsel for the petitioner
submitted that by the amendment the
applicant has raised the plea that the
construction of the premises in dispute
was made prior to 1972 and, therefore,
Act No. 13 of 1972 was applicable and,
therefore, the S.C.C. Suit filed was not
maintainable. This plea is necessary to
adjudicate the issue and, therefore, ought
to have been allowed. He submitted that
the apex Court in the case of Andhra
Bank v. ABN Amro Bank N.V. and
Ors. reported in 2007 (3) ARC 410 has
held that the delay is no ground for
refusing the prayer of amendment. He
further submitted that defendant no. 2 had
earlier moved the application raising the
plea
that
during
pendency
of
the
proceeding, on the intervention of the
neighbors, the dispute has been settled
between the parties and, according to
which, the plaintiff-landlord has received
the rent in cash upto December, 2007 and
agreed to withdraw the suit and when he
refused to withdraw the suit a sum of
Rs.20,000/- was deposited on 12.2.2008
in the court. It was pleaded that since the
above facts have come into existence after
filing of the written statement, such
amendment was liable to be allowed.
However, the amendment has been
rejected on the ground that it has been
moved after nine months from the date of
the close of the evidence.

5.

Learned
counsel
for
the
respondents
submitted
that
the
amendment application was moved to
delay the proceeding with mala fide
intention. He submitted that the evidence
was closed on 10.7.2007 of both the
parties and 26.7.2007 was fixed for
hearing. Thereafter, for one reason or the
other, the defendant had tried to delay the
proceeding and when the amendment
application filed by defendant no. 2 has
been rejected with the new plea the
amendment has been moved by the
petitioner-defendant no. 1. He submitted
that since the application is not bona fide
the same should not be entertained and in
support of it he relied upon the recent
decision of the apex Court in the case of
Revajeetu Builders & Developers v.
16 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Narayanaswamy & Sons & others
reported in 2009 (3) ARC 502. He further
submitted that by the amendment such
pleading has been taken which amounts to
resiling from the admission made in the
original written statement, which is not
permissible. In support of the contention
he relied upon the decision of the apex
Court in the case of Gautam Sarup v.
Leela Jetly and others reported in (2008)
7 S.C.C. 85. He submitted that on the
aforesaid facts and circumstances the trial
court has rightly rejected the amendment
application.

6. Having heard learned counsel for
the parties I have perused the impugned
order and given my anxious consideration
to the rival submissions.

7. Admittedly, the evidence of both
the parties have been closed on 10.7.2007
and 26.7.2007 was fixed for hearing. The
present amendment application has been
moved by petitioner-defendant no. 1 on
2.2.2009 after one year seven months
from the date of closure of the evidence.
No proper reason has been given for such
delay. It is also necessary to mention that
defendant
no.
2
has
moved
the
amendment
application
on
2.4.2008
which has been rejected by the trial court
on 7.8.2008 against which Revision No.
385 of 2008 has been dismissed on
20.10.2008. While dismissing the revision
this Court observed as follows:

"The court below finding that the
evidence was already over on 10.7.2007
and the case was fixed for hearing on
26.7.2007 and the defendant-tenant was
seeking adjournment after adjournment
and the application for amendment
having been moved after nine months of
the evidence being over was not liable to
be allowed and accordingly, rejected the
same.
In the facts and circumstances of the
case, where the amendment was sought in
the written statement after nine months of
close of evidence of the parties and the
case being fixed for hearing and disposal,
no illegality appears to have been
committed by the Court below in rejecting
the amendment application.
The revision accordingly, fails and
stands dismissed."

8. In the circumstances and for the
reasons given by this Court in rejecting
the amendment application moved earlier,
the present amendment application cannot
be entertained. It appears that the
amendment application has not been
moved bona fidely and has been moved
with a mala fide intention to delay the
proceeding. the apex Court in the case of
Revajeetu Builders & Developers (supra)
held as follows :

"67. 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 this 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
1 All] Brij Raj Dwivedi V. State of U.P. and others
17
fundamentally changes the nature and
character of the case ? and
(6) As a general rule, the Court
should decline amendment s if a fresh suit
on the amended claims would be barred
by limitation on the date of application.

68. 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.
69. The decision on an application made
under Order VI Rule 17 is a very serious
judicial exercise and the said exercise
should never be undertaken in a casual
manner.
70. We can conclude our discussion by
observing
that
while
deciding
applications for amendments the courts
must not refuse bonafide, legitimate,
honest and necessary amendments and
should never permit mala fide, worthless
and/or dishonest amendments."

9. The trial court has recorded
categorical finding that by the amendment
the defendants intended to resile with the
admission made in the written statement,
which is not permissible in law. The apex
Court in the case of Gautam Sarup (supra)
has held that under Order 6 Rule 17 the
party cannot be permitted to resile from
the admissions made in the earlier written
statement
by
moving
amendment
application.

It is also necessary to examine Order
6 Rule 17 which reads as follows :

"The court may at any stage of the
proceedings allow either party to alter or
amend his pleading 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 in spite of due
diligence, the party could not have raised
the matter before the commencement of
trial."

10. In the present case the evidence
of both the parties have been closed and
the suit was fixed for final hearing and,
therefore, the trial had commenced. No
reason has been given that inspite of the
due diligence the applicant could not have
raised the plea taken in the amendment
application
in
the
earlier
written
statement. In the circumstances, the
petitioner is not entitled for the benefit of
the proviso to Order 6 Rule 17.

11. On the facts and circumstances
stated above, I am of the view that the
trial court has rightly exercised its
discretion
in
not
entertaining
the
amendment application. In the result the
revision fails and is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.01.2010

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 645 of 2010

Brij Raj Dwivedi

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ashok Kumar Dwivedi