High Court
Case Details
CRP 106/2008 BEFORE HON’BLE MR JUSTICE S. TALAPATRA
Legal Reasoning
Heard Mr. S. Banik, learned counsel appearing for the petitioner as well as Mr. A. Hazarika, learned counsel appearing for the respondent. This is a petition filed under Article 227 of the Constitution of India against the order dated 07.04.2008 passed by the Munsiff No.1, Tinsukia in Misc. (J) Case No.03 of 2008 arising from the Title Suit No.36 of 2006, rejecting the composite petition filed by the plaintiff, the petitioner herein, under Order 6 Rule 17 of the CPC for amendment of the plaint and under order 14 Rule 5 read wi th Section 151 of the CPC for framing an additional issue on the amended part of the plaint. By the petition that was filed for amendment of the plaint at the argume nt stage, the plaintiff referred to the cross examination of the respondent wher e it is found that the respondent has admitted that the letter dated 08.02.2006 (Exbt.7) was received by him on 20.02.2006. In the latter part of the cross exam ination, he further admitted that (cid:28)After I received Ex.-7 from the plaintiff I d id not tender the rent for April, 2006 personally to the plaintiff at his reside nce. Because the practice of depositing rent in the Bank was there. (cid:29) According to Mr. Banik, learned counsel for the petitioner that was the source of knowledge of the landlord plaintiff about the ’default’ and he filed t hat petition thereupon. He further submitted that in the Assam Urban Areas Rent Control Act, 1972 no provision has been engrafted to issue notice of eviction in the suit. Therefore, the plaintiff on such disclosure is entitled to resort to another additional ground of ’default’ for eviction and which is according to Mr . Banik, learned counsel for the petitioner is a very strong ground for eviction . In the impugned order, the Munsiff No.1, Tinsukia observed that (cid:28)I fail to understand, as to how if the default was made for the month of April, 2006, t he same was not within the knowledge of the plaintiff, because they ought to kno w for which months they received the rent and for which months they did not rece ive it. (cid:29) This is the premise upon which the prayer for amendment was rejected. A s consequence of the rejection of the prayer for amendment, the other prayer for framing additional issue was also refused. While responding to the submission of Mr. Banik, learned counsel for the petitioner, Mr. Hazarika, learned counsel for the respondent categorically subm itted that the element of diligence acquires a greater importance while consider ing any prayer for amendment in the belated stage. Mr. Hazarika, learned counsel further contended that for the purpose of eliminating the frivolous amendment a nd amendment at the latter stage of the proceeding, a proviso has been inserted below the Rule 17 of Order 6 of the CPC imposing certain restrictions in regard to allowing the amendment. He further submitted that whether the rent is paid or not it always remains within the exclusive knowledge of landlord. He cannot be allowed to plead before the Court that he would only come about that information from the cross examination of the respondent. As such, the finding as returned by the Munsiff No.1, Tinsukia cannot be faulted with. To buttress his reply, Mr. Banik, learned counsel for the petitioner referred a decision of the apex Court in J. Samuel and others Vs. Gattu Mahesh and others as reported in (2012) 2 SCC 300 where at para-16 it has been held that: (cid:28)16. As stated earlier, in the present case, the amendment application itself wa s filed only on 24-9-2010 after the arguments were completed and the matter was posted for judgment on 4-10-2010. On proper interpretation of the proviso to Rul e 17 of Order 6, the party has to satisfy the court that it could not have disco vered that ground which was pleaded by amendment, in spite of due diligence. No doubt, Rule 17 confers power on the court to amend the pleadings at any stage of the proceedings. However, the proviso restricts that power once the trial has c ommenced. Unless the court satisfies (sic itself) that there is a reasonable cau se for allowing the amendment, normally the court has to reject such a request.’ ’ This Court on consideration of submissions as made by the learned counse l for the parties as well as on scrutiny of the records as made available is of the view that definitely the proviso to Order 6 Rule 17, CPC imposes serious res triction regarding amendment of the plaint after the trial has commenced but thi s proviso never takes away the powers from the Court to allow the amendment to b e carried out for substantive ends of justice and if it is proved by the plainti ff that the amended part has a greater relevance in deciding the real controvers y involved in the suit. No doubt the controversy in the suit is whether the evic tion would be permitted on the bona fide requirement but as it appeared during t he hearing that another ground can be availed of by the plaintiff on the respond ent’s being defaulter the Court should not stand in the way as the further suit might be improbability in view of provisions of Order 2 Rule 2 of the CPC. The C ourt or any procedural provision thereof is not to frustrate the justice but to advance it. In view of the matter, the interim order is interfered with and set asid e. The Munsiff No.1, Tinsukia is directed to allow the plaintiff, the petitioner herein, to carry out the amendment as proposed. By the next date the plaintiff shall file the amended plaint before the Munsiff No.1, Tinsukia with a copy to t he defendant, the respondent herein. It is made clear after such amendment, the Munsiff No.1, Tinsukia shall consider whether it is required to frame an additional issue or not. It is further made clear that this petition is allowed subject to payment of Rs. 1,000/- (Rupees one thousand) to the defendant. Both the parties are directed to appear before the Munsiff No.1, Tinsukia on 27. 02.2013 for further steps. With the above observation and direction, this petition stands disposed of.