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ALLAHABAD HIGH COURT
Devendra Kumar Upadhyaya, J.
Roop Rani Awasthi -Appellant
Versus
Prem Kumari -Respondent
Civil Revision No. - 140 of 2013
Decided On : 22-11-2013
Amendment - Civil Procedure Code - Order VI Rule 17 - Summary of Acts and Sections: Order VI Rule 17 of the Civil Procedure Code - The court discussed the provisions contained in the proviso appended to Order VI Rule 17 of CPC and emphasized the mandatory nature of the said provision. The court also highlighted the conditions precedent for allowing an amendment application and the significance of due diligence in raising the matter before the commencement of trial.
Fact of the Case:
The plaintiff filed a SCC Suit for eviction and recovery of rent against the defendant. The plaintiff sought an amendment to the plaint, which was allowed by the trial court. The defendant challenged this order through a revision petition.
Finding of the Court:
The court found that the trial court erred in allowing the amendment without considering the mandatory provisions of Order VI Rule 17 of CPC. It held that the amendment changed the pleadings contrary to the evidence and did not address the objections raised by the defendant.
Issues: The key issue was whether the trial court's order allowing the amendment application complied with the provisions of Order VI Rule 17 of CPC.
Ratio Decidendi: The court emphasized the mandatory nature of the proviso appended to Order VI Rule 17 of CPC and the conditions precedent for allowing an amendment after the commencement of trial.
Final Decision: The revision petition was allowed, and the trial court's order was set aside. The court directed the trial court to reconsider the application for amendment in light of the observations made in the judgment.
This revision petition under Section 25 of Provincial Small Cause Courts Act has been preferred by the revision applicant-defendant against the order dated 24.09.2013 passed by Judge, Small Causes, Unnao in SCC Suit No. 1 of 2010 whereby application seeking amendment in the plaint moved by the opposite party-plaintiff was allowed.
2. The facts of the case, in short, are that the opposite party- plaintiff filed a SCC Suit for eviction and recovery of rent on 01.02.2010 with the allegations that plaintiff is the owner of four shops situate at house no.14/15, Rajdhani Marg, Kasba Shuklaganj, Nagar Palika Parishad, Gangaghat, Tehsil and District Unnao and that the defendant is the tenant of four shops since October, 1994 on monthly rent of Rs.2000/- and that since November, 2009 to January, 2010 the defendant has not paid rent as such she is liable to be evicted and further that a decree is also liable to be passed against her for payment of arrears of rent.
3. In para 3 of the plaint it was averred by the plaintiff that the space where at present four shops as described in para 1 of the plaint and another shop on the eastern side of the said four shops which is in the tenancy of one Ashok Kumar Awasthi, there existed a godown which was in the tenancy of M/s BPL India Limited. In para 4 of the plaint, it was also stated that after getting the godown, which was tenancy in M/s BPL India Limited, demolished she got four shops and another shop on the eastern side which is in the tenancy of one Sri Ashok Kumar Awasthi constructed in the year 1993.
4. A written statement was filed by the defendant denying the plaint allegations. The evidence in the form of affidavit was also filed by the plaintiff on 23.09.2011. The said evidence with the plaint has been annexed as annexure 5, which is part of record of the present revision petition, perusal of which reveals that plaint allegations have been reiterated verbatim.
5. It is also not in dispute that on 23.11.2012 the plaintiff was cross examined. After cross examination of the plaintiff, application seeking certain amendments in paras 3 and 4 of the plaint appears to have moved on 19/23.01.2013. In the plaint it was stated by her that she got constructed all the five shops after getting the godown, which was in the tenancy of M/s BPL India Limited, demolished whereas by way of amendment she intended to state that godown existed only on the space where earlier four shops existed excluding the shop in the tenancy of Ashok Kumar Awasthi. In the plaint it was stated that plaintiff got constructed all the five shops in the year 1993 whereas by way of amendment it was intended to state by the plaintiff that she got only four shops constructed in the year 1993.
6. An objection was filed by the defendant to the aforesaid application seeking amendment stating therein that amendment sought is not bonafide as it has been filed only with a view to defeat another suit i.e. SCC Suit No.9 of 2011 filed by the plaintiff's son against the husband of defendant. It was also averred by the defendant in her objection that the proposed amendments cannot be said to have resulted on account of typographical error. It was also pleaded by the defendant that since trial of the suit has commenced and further that since statement of plaintiff as PW-1 as she has been cross examined on 23.11.2012 as such at this stage amendment in the plaint cannot be legally permitted to be made.
7. Learned trial court below, however, considering the application for amendment and the objections allowed the amendment application by means of order dated 24.02.2013 stating therein that if any amendment is allowed for the purposes of correcting typographical error, then the same does not result in changing the nature of the suit. It is this order dated 24.02.2013, that is under challenge in the present revision petition.
8. Vehemently arguing on behalf of the revision applicant -defendant, Sri Shafiq Mirza has su
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