High Court
Case Details
Neutral Citation No. - 2024:AHC:137303 Court No. - 6 Case :- MATTERS UNDER ARTICLE 227 No. - 10242 of 2024 Petitioner :- Smt Indu Arora Respondent :- Ashok Kumar Varshney Deceased And 4 Others Counsel for Petitioner :- Pankaj Agarwal Counsel for Respondent :- Akanksha Gaur
Legal Reasoning
Hon'ble Saral Srivastava,J. 1. Heard learned counsel for the petitioner and Sri Sumit Daga and Ms. Akansha Gaur, learned counsels for the respondents. 2. The petitioner by means of the present petition under Article 227 of the Constitution of India has assailed the order dated 06.03.2024 passed by the Judge Small Causes Court, Aligarh in S.C.C. Suit No.36 of 2020 by which he has rejected the amendment application of the petitioner and order dated 24.04.2024 passed by the District Judge, Aligarh affirming the order of the Judge Small Causes Court dated 06.03.2024 rejecting the amendment application of the petitioner. 3. The facts, in brief, are that respondents instituted S.C.C. Suit No.36 of 2020 for eviction against the petitioner contending inter- alia that respondent is the owner and landlord of the shop detailed at the foot of the plaint. It is stated that petitioner took the shop on rent by means of registered Lease Deed dated 01.06.2015 on the terms and conditions set out in the Lease Deed. The further averments in the plaint is that petitioner failed to pay rent at the rate of Rs.2750/- per month plus taxes at the rate of Rs.500/- per month since 15.03.2019 to 30.05.2019. It is further stated that the tenancy was for a fixed period, and the period of tenancy has expired. Thus, the petitioner is liable to vacate the shop in question. 4. In the aforesaid case, petitioner filed an amendment application to bring on record certain facts. It is stated in the amendment application that the facts which the petitioner wants to bring on record through amendment were explained and narrated by the petitioner to her previous counsel, but he has not properly explained and narrated the same in the written statement. Thus, the facts pleaded in the written statement are confusing. It is further stated that petitioner came to know about the said irregularity only today i.e. 27.09.2023 in the morning while getting the case prepared through her new counsel. The petitioner wants to incorporate following paragraphs after paragraph 11:- "11-A. That prior to the execution of the lease deed Ashok Kumar Varsheny and his wife Anita Varshney jointly let-out the shop in question to defendant & were jointly receiving the rent of the shop in question as co-sharer and co- landlord from the defendant subsequently said landlord requested and desired to execute rent deed with regard to shop in question. 11-B. That it is pertinent to mention here that rent dated 01/06/2015 was executed between plaintiff Ashok Kumar Varshney and defendant with regard to shop in question, i.e. shop no.4 part and parcel of house no.3/452 situated at Samad Road, Aligarh for a period of 5 years from dated 01/06/2015 till 31/05/2020. 11-C. That after execution of the said lease deed it is transpired that Smt. Anita Varshney has not joined the alleged lease deed and when defendant raised objection in this regard the plaintiff got issued rent receipt dated 17/05/2016 as co-landlord jointly thus by virtue of said arrangement the tenancy was created under joint landlordship of Mr. Ashok Kumar Varshney & Smt. Anita Varshney. 11-D. That since the rent was received by said co-landlords and Smt. Anita Varshney never repudiated her claims as a co-landlord nor she waived her rights to receive the rent thus under express and implied consent she continued to be a co-landlord and the defendant continued to be tenant of Ashok Kumar Varshney and Anita Varshney thus said Ashok Kumar Varshney was neither a sole landlord not a sole owner & has no right or authority to terminate the tenancy as sole owner & landlord. 11-E. That alleged notice of termination dated 20/07/2020 has been served by Ashok Kumar Varshney alone thus the said notice is defective and cannot be legally enforced as Smt. Anita Varshney never terminated the tenancy of defendant and since said Ashok Kumar Varshney has no right and authority to terminate the tenancy as sole landlord thus the notice is barred by provisions of Section 106 Transfer of Property Act. 11-F. That it is also pertinent to mention here that Mr. Ashok Kumar Varshney has filed this suit as sole owner and landlord while admittedly Smt. Anita Varshney was a co-owner and co-landlord thus said Ashok Kumar Varshney has no right or authority to present this suit and this suit being defective is liable to be dismissed on this ground alone. 11-G. That it will not be out of place to mention here that the shop in question is part & parcel of Building no.3/117-A-III (now alleged as 3/452) the said building was previously owned and possessed by Mr. Prakash Chand Mittal & his wife Smt. Savitri Devi who transferred the same in favour of Ashok Kumar Varshney & Anita Varshney the said building was assessed by the Nagar Nigam for the first time w.e.f. 01/10/1983 and subsequently when the building was purchased by Ashok Kumar Varshney & Anita Varshney the building tax was mutated/assessed in their name, the allegations of the plaintiff that the building is a newly constructed building and the provisions of U.P. Act XIII of 1972 are not applicable to it are totally false & baseless." 5. The amendment application was opposed by the respondent/landlord by filing objection contending inter-alia that by way of amendment, the petitioner wants to withdraw her admission that respondent no.1 is her landlord. It is further stated that written statement was filed by the petitioner on 12.07.2023, and after filing of the written statement, respondent/landlord on 25.07.2023 filed an affidavit as examination-in-chief, and thereafter, 02.08.2023, 04.08.2023, 14.08.2023, 29.08.2023, 08.09.2023 and 20.09.2023 were fixed for cross examination, but petitioner did not cross examine the respondent/landlord, and thus, amendment application has been filed only to delay the proceedings. 6. The Trial Court while rejecting the amendment application has recorded a finding that petitioner has admitted respondent no.1 as her landlord. The Trial Court further recorded a finding that the facts which the petitioner wants to bring on record through amendment are not new facts or the facts which had occurred subsequent to the date of commencement of the trial. 7. The Trial Court further recorded a finding that the facts which the petitioner wants to bring on record through amendment cannot be taken on record as they do not conform to Sections 91 & 92 of the Evidence Act. It further held that if amendment application is allowed, the trial of the case has to be started de novo at this stage. Consequently, the Trial Court rejected the amendment application. 8. The Revisional Court affirmed the finding of the Trial Court. It further held that the Trial Court in the context of the case has referred the Sections 91 & 92 of the Evidence Act, but has not concluded any issue in recording the finding that amendment application does not conform to Sections 91 & 92 of the Evidence Act. 9. Challenging the aforesaid orders, learned counsel for the petitioner has contended that the facts which the petitioner wants to bring on record through amendment are necessary in the interest of justice. It is contended that delay cannot be a ground to deny the petitioner to amend written statement more so when, amendment sought does not prejudice the petitioner. It is submitted that the Subordinate Courts have erred in law in rejecting the amendment application on the ground that there was delay in filing the amendment application. 10. Per contra, learned counsel for the respondents would contend that finding returned by both the Courts below is a finding of fact based upon proper appreciation of material and evidence on record. It is submitted that the Trial Court has returned a categorical finding that the facts which the petitioner wants to bring on record through amendment are not new facts or facts subsequent to the filing of written statement by the petitioner. 11. It is further submitted that the trial has commenced and the petitioner has failed to established that despite her due diligence, she could not bring those facts on record, therefore, in view of Proviso to Order 6 Rule 17 of C.P.C., both the Courts below have rightly rejected the amendment application. 12. I have considered the rival submissions of the parties and perused the record. 13. It transpires from the record that petitioner has filed written statement on 12.07.2023, and thereafter, respondent/landlord filed evidence in the form of affidavit as examination-in-chief on 25.07.2023, and thereafter, Trial Court fixed several dates i.e. 02.08.2023, 04.08.2023, 14.08.2023, 29.08.2023, 08.09.2023 and 20.09.2023 for cross examination of respondent/landlord, but petitioner instead of cross examining the respondent/landlord filed amendment application to amend the written statement. 14. The only explanation for delay in filing the written statement has been stated in paragraph nos.10 & 11 of the affidavit which are reproduced herein below:- "10. That the said facts were explained and narrated by the defendant to her previous counsel but he has not properly explained and narrated the same in the written statement thus the facts are not clear and creating confusion. 11. That the defendant came to know about the said irregularity only today in the morning while getting the case prepared through her new counsel." 15. The explanation of delay, extracted above, does not reveal that proper explanation has been given by the petitioner so as to make out a case that despite due diligence, petitioner could not bring on record the facts which she wants to bring on record through amendment nor they are new facts. 16. It is pertinent to note that petitioner in her written statement has admitted respondent no.1 as her landlord, and now by amendment, the petitioner wants to plead that Smt. Anita Varshney was also the co-owner of the shop in question, and since notice of termination has not been given by her as it was given only by respondent, therefore, notice is defective. 17. The aforesaid fact clearly shows that the petitioner wants to withdraw an admission made by her in the written statement through amendment in the written statement inasmuch as petitioner has admitted the fact that respondent no.1 is her landlord and now by amendment, she challenges the authority of respondent to issue notice terminating the tenancy and pleads that notice is defective. 18. It is also evident from the record that several dates have been fixed by the Trial Court for cross examination of the respondent/landlord, but petitioner did not cross examine the respondent/landlord and filed the present amendment application which reflects that amendment application has been filed only to delay the trial of the suit. 19. In such view of the fact, this Court finds that the Trial Court as well as Revisional Court has not committed any material irregularity or jurisdictional error in rejecting the amendment application.
Decision
20. Thus, for the reasons given above, the present petition under Article 227 of the Constitution of India lacks merit and is hereby dismissed with no order as to costs. Order Date :- 22.8.2024 Sattyarth