# Smt. Ashoka Devi & Ors v. Smt. Prkashni Sharma & Ors - **Citation:** (2022) 12 ILRA 895 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2022-11-30 - **Case number:** Matter Under Article 227 No. 5522 of 2021 - **Bench:** Ajit Kumar - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-ashoka-devi-ors-v-smt-prkashni-sharma-ors-48060 - **Pages:** 3 ## Headnote Civil Law - Code of Civil Procedure,1908 - Order VI Rule 17-Second amendment application by defendant to amend the Written Statement allowed-challenged-by amendment seeking to change his character of tenant which was otherwise an admission-amendment would amount to withdraw of admission-amendment application was dismissed -another filed without recalling the order-orders allowing subsequent amendment application cannot be sustained. Petition allowed. (E-9) List of Cases cited: 1 Modi Spinning & Weaving Mills Co. Vs Ladha Ram & Co.,1977 AIR 680 2 Shamim Akhtar Vs Iqbal Ahmad & anr., AIR 2001 (SC) 1 ## Text 12 All. Smt. Ashoka Devi & Ors. Vs. Smt. Prakashni Sharma & Ors. 895 vacant possession of the shop in dispute provided he execute an undertaking before the Prescribed Authority, Ghaziabad, embodying the following terms within one month of the date of receipt of a certified copy of this judgment by either party and its production before the Trial Court: (1) The tenant shall handover peaceful and vacant possession of the demised shop to the landlord on or before 10.05.2023. (2) During the period of six months that the tenant remains in occupation, he will not sublet the shop, damage or disfigure it in any manner whatsoever. 53. In the event, an undertaking, as above directed, is not filed before the Prescribed Authority by the tenant within the time allowed or the undertaking violated, the release order shall become executable forthwith. ---------- (2022) 12 ILRA 895 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 30.11.2022 BEFORE THE HON'BLE AJIT KUMAR, J. Matter Under Article 227 No. 5522 of 2021 Smt. Ashoka Devi & Ors. ...Petitioners Versus Smt. Prkashni Sharma & Ors. ...Respondents Counsel for the Petitioner: Sri Arvind Kumar Trivedi Counsel for the Respondents: Sri Akash Chandra Maurya Civil Law - Code of Civil Procedure,1908 - Order VI Rule 17-Second amendment application by defendant to amend the Written Statement allowed-challenged-by amendment seeking to change his character of tenant which was otherwise an admission-amendment would amount to withdraw of admission-amendment application was dismissed -another filed without recalling the order-orders allowing subsequent amendment application cannot be sustained. Petition allowed. (E-9) List of Cases cited: 1 Modi Spinning & Weaving Mills Co. Vs Ladha Ram & Co.,1977 AIR 680 2 Shamim Akhtar Vs Iqbal Ahmad & anr., AIR 2001 (SC) 1 (Delivered by Hon'ble Ajit Kumar, J.) 1. Heard Sri A. K.Trivedi, learned counsel for the petitioners and Sri Akash Chandra Maurya, learned counsel appearing for the contesting respondent. 2. By means of present petition filed under Article 227 of the Constitution, the petitioner has invoked supervisory jurisdiction of this Court seeking to set aside the order dated 14.12.2017 passed by the Trial Judge in SCC Suit No. 72 of 2003 and that of the Court sitting in revision dated 25.8.2021 passed by Additional District Judge, Court No. 12, Kanpur Nagar in SCC Revision No. 06 of 2018, whereby second amendment application of the defendant to amend written statement has come to be allowed. 3. The submission advanced by learned counsel for the petitioner is that the amendment application that was moved by the defendant under Order VI Rule 17 of the Code of Civil Procedure, 1908 on 31st July, 2004 seeking to change his character of a tenant which was otherwise an admission vide paragraphs 8 and 9 of the 896 INDIAN LAW REPORTS ALLAHABAD SERIES original written statement. It is argued that the manner in which amendment was sought to be incorporated in the original proceedings amounted to withdrawal of admission. This application bearing paper no. 24-C came to be rejected by Trial Court on 25.10.2008 in absence of counsel for the defendant and matter was posted for evidence and no application for recall was filed in respect of order dated 15.10.2008 and yet again an another amendment application came to be filed by the defendants respondents on 25th January, 2017 to incorporate certain more paragraphs after paragraph 8. 4. Learned counsel for the petitioner has next submitted that petitioner vide new paragraphs 8-A to 8-D wanted to incorporate that subsequently he having obtained knowledge came to know that there was serious dispute of ownership amongst the owners and so defendant would not be a tenant of the plaintiff and as such not liable to pay rent. 5. It is thus argued by learned counsel for the petitioner that tenant in fact wanted to withdraw the admission again and has camouflaged the withdrawal of admission originally made in paragraphs 8 and 9 of the written statement, by twisting the facts. It is also argued that second amendment application was hit by Section 11 of the Code of Civil Procedure, 1908. 6. Per contra, it is argued by learned counsel for the contesting respondent that merely because earlier application was dismissed on the ground of non appearance of party seeking the amendment, it would not operate as res judicata to hold that subsequent application was not maintainable. Moreover, as he argued, subsequently certain fresh facts came to the knowledge petitioners were only sought to be incorporated. However, learned counsel for the petitioner would not dispute that whatever has been stated in paragraph 8, if amendment is allowed would certainly be countering those averments and may amount to withdrawal. 7. The Supreme Court in the case of Modi Spinning & Weaving Mills Co. v. Ladha Ram & Co.,1977 AIR 680 has very clearly held that admission made in the written statement cannot be permitted to be withdrawn. Vide paragraph 10 of the judgment (supra), it was held thus: "It is true that inconsistent pleas can be made in plead- ings but the effect of substitution of paragraphs 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irre- trievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the application for amendment and agreed with the trial court." 8. In so far dispute amongst the parties having right to the property in question is concerned and as to whether landlord would be entitled to maintain suit for recovery of rent or ejectment or not, this aspect can be incidentally gone into by the court hearing SCC suit even. Supreme Court in the case of Shamim Akhtar v. Iqbal Ahmad and Another, AIR 2001 (SC) 1, held that the question of title of the plaintiff to the suit house could be considered by the Small Causes Court in the proceedings as an incidental question and final determination of the title could be 12 All. Bhanu Gandotra Vs. Addl. Principal Judge Family Court, Lko. & Anr. 897 left for decision of the competent Court. In such circumstances, it could not be said that for the purpose of granting the relief claimed by the plaintiff it was absolutely necessary for the Small Causes Court to determine finally the title to the property. The tenant-respondent by merely denying the relationship of landlord and tenant between himself and the plaintiff could not avoid the eviction proceeding under the Rent Control Act. That is neither the language nor the purpose of the provisions in Section 23(1) of the Small Causes Court Act. 9. In view of above, therefore, I am not able to sustain the orders passed by the Trial Judge as well as court sitting in revision allowing subsequent amendment application moved by the defendant respondent. However, since, it is always open for the Trial Judge to go incidentally into the question of title of the landlord so as to determine his entitlement to recover the rent from the defendant tenant, it will be open for the defendant to lead such evidence as may be permissible and admissible in law and in the event any such evidence is led, that may be examined to determine a point of title of the land lord even whiling going incidentally into that question by the Trial Judge . 10. Subject to aforesaid liberty granted to the defendant , the orders passed by the Trial Court dated 14.12.2017 and that of Court sitting in revision dated 25th August, 2021 are hereby set aside. 11. With the aforesaid observations and directions, this petition stands allowed. ---------- (2022) 12 ILRA 897 ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 07.12.2022 BEFORE THE HON'BLE ABDUL MOIN, J. Matter Under Article 227 No. 23974 of 2021 Bhanu Gandotra ...Petitioner Versus Addl. Principal Judge Family Court, Lko. & Anr. ...Respondents Counsel for the Petitioner: Aishwarya Pratap Singh, Sandeep Kumar (Trivedi) Counsel for the Respondents: Ram Raj, Risabh Raj Civil Law - Family Court Act, 1984-Section 19 (1)-Opportunity for filing of written statement by Petitioner closed-impugned ordersaid order effected the right of the Petitioner-is an interlocutory judgment-section 19 (1) of the Act, 1984 provides remedy of Appeal-impugned order is an intermediary or interlocutory Judgment-remedy of Appeal-petition under Article 227 not maintainable. Petition dismissed. (E-9) List of Cases cited: 1. Smt. Kiran Bala Srivastava Vs Jai Prakash Srivastava, 2005 (23) LCD 1 2. Yogesh Arora Vs Smt. Jennette Yogish Arora reported in (2018) 9 ADJ 379 3. Shah Babu Lal Khimji Vs Jayabein Kania,AIR 1981 SC 1786 (Delivered by Hon'ble Abdul Moin, J.) 1. Heard learned counsel for the petitioner and Sri Ram Raj, learned counsel appearing for the respondent. 2. Under challenge is the order dated 23.02.2021 passed by the learned Additional Principal Judge, Family Court-