Amendment of pleadings at the appellate stage should be allowed only in rarest of rare cases. The court should consider the issue of prejudice and the genuineness of the reasons for the amendment. Withdrawal of an admission made in the pleadings with ulterior motive is not permissible.

ORDER :

CM No. 1/2017

1. The respondent No.1/non-applicant, who happens to be the father-in-law of the applicant/appellant and father of the respondent No. 2 respectively, filed a suit against appellant and the respondent No.2 for possession in respect of four rooms, one store, two bath rooms and temporary kitchen in House No. 6-A Extension, Gandhi Nagar, Jammu and also for permanent prohibitory injunction restraining the appellant and respondent No. 2 from interfering in any manner in respect of two rooms, one kitchen, one bath room, lobby in possession of the respondent No. 1 or changing or altering the nature of property or creating any encumbrance upon the said property. The suit for possession was filed by the respondent No. 1, claiming to be owner of the abovementioned property because of the continuous quarrel between the applicant/appellant and respondent No. 2, which had become a source of nuisance for the respondent No. 1 and his wife.

2. The applicant/appellant and respondent No. 2 filed their written statements separately. The applicant/appellant in her written statement pleaded that she was a lawful tenant of the respondent No. 1 and the suit for possession and permanent prohibitory injunction filed against her was not maintainable in view of the provisions of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966. Besides, it was also pleaded by the applicant/appellant that with the marriage of the applicant/appellant and respondent No. 2, the respondent No. 1 had permitted them to live and reside in the house, thereby creating perpetual licence in their favour to live and reside in their house and use the same for their benefit in any manner, if they so liked.

3. The suit was filed in the year, 2001and the same was decreed by the Court of learned Principal District Judge, Jammu vide judgment and decree dated 07.07.2015 in favour of the respondent No. 1. The appellant/applicant has preferred an appeal against the said judgment and decree and in appeal, the instant application has been filed by the appellant/applicant under Order 6 Rule 17 CPC for amendment of the written statement and for permission to lead additional evidence on the ground that the suit was filed in the year, 2001 and the Jammu and Kashmir Protection of Women from Domestic Violence Act came to be passed in the year 2010. The right to shelter has been envisaged in favour of the wife as an aggrieved person under the Act (supra). At the time of filing of the written statement in the suit, the applicant/appellant could not raise this defence in her written statement as enactment of the aforesaid Act is a subsequent event, which confers legal rights upon the appellant/applicant. It was also pleaded that the learned Principal District Judge, Jammu while deciding the suit filed by the respondent No. 1 has placed reliance upon the judgment of the Hon’ble Supreme Court of India in S.R. Batra vs. Taruna Batra, AIR 2007 SC 1118. It is further averred that the appellant/applicant, respondents and mother-in-law of the applicant/appellant constituted a joint Hindu family and all the family members had been living jointly till the respondents left the suit house, leaving the appellant/applicant in isolation. The applicant/appellant intends to amend the written statement by pleading, “that after the passing of the Protection of Women from Domestic Violence Act, 2010 right to shelter in favour of the aggrieved person has been envisaged. The suit house is a joint property of the defendants, as it has been got blended into joint Hindu family property by contribution of the defendant No.2 as well as her husband i.e. defendant no. 1 in the joint pool of the family. Such income has been utilized in the construction and renovation of the suit house and the parties have been living together as a joint family. As the suit house is a joint property of defendants and plaintiff, therefore, the defendant No. 2 has a right of residence in the suit house.”

4. The respondent