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ALLAHABAD HIGH COURT
Ram Surat Ram (Maurya), J.
Hari Shanker And 5 Ors - Appellant
Versus
Bhagwati Prasad Mishra - Respondent
Writ -A No. - 56591 of 2014
Decided On : 30-10-2014
Amendment of Pleading - Rent Dispute - U.P. Act No. XIII of 1972 - Section 21(1)(a) - Order VI Rule 17 C.P.C. - Supreme Court precedents
Fact of the Case:
The writ petition was filed against the rejection of an application for amendment of written statement in a rent appeal case. The dispute arose from a release application filed under Section 21(1)(a) of U.P. Act No. XIII of 1972 for the release of a shop, with the petitioners contesting the need for release and seeking to amend their written statement.
Finding of the Court:
The court found that the proposed amendments sought to withdraw the petitioners' admission in their written statement, and the delay in noticing the facts for the proposed amendment was not in line with the due diligence required for such amendments.
Issues: The main issue was whether the proposed amendment of the written statement should be allowed, and whether it was in line with the provisions of Order VI Rule 17 C.P.C.
Ratio Decidendi: The court relied on Supreme Court precedents to determine that the proposed amendments sought to completely change the case made in the written statement, and the delay in noticing the facts did not meet the standard of due diligence required for such amendments.
Final Decision: The court dismissed the writ petition, finding that the proposed amendments did not meet the requirements of due diligence and were not in line with the provisions of Order VI Rule 17 C.P.C.
Ram Surat Ram (Maurya),J.
1. Heard Sri K.K. Nirkhi, for the petitioners.
2. This writ petition has been filed against the order of Additional District Judge, Court No. 24, Kanpur Nagar dated 28.08.2014, rejecting the application for amendment of written statement (38-C) filed by petitioners in Rent Appeal No. 33 of 2012, Prem Shanker & others Vs. Bhagwati Prasad Mishra.
3. Smt. Ram Kumari, mother of Bhagwati Prasad Mishra filed a release application (registered as Rent Case No. 4 of 2007) under Section 21 (1) (a) of U.P. Act No. XIII of 1972 for release of the shop in dispute situated in Premises No. 67/52-A, mohalla Daulatganj, Kanpur Nagar, setting up personal need of the respondent. It has been stated in the application that she was owner and landlady of the shop in dispute and the petitioners were tenant in it. Family of the landlady consists of herself, her son Bhagwati Prasad Mishra, daughter-in-law Smt. Sudha Mishra, grand son Roshan Mishra and grand daughter-in-law Smt. Vandana Mishra. Bhagwati Prasad Mishra was unemployed and doing business of kabar on cycle in pheri. Roshan Mishra was carrying on metal business in a small shop. Bhagwati Prasad Mishra wanted to start business of purchase and sale of old copper and brass metal. The petitioners inherited a house from her mother at mohall Kidwai Nagar, Kanpur Nagar and are moneyed persons. They can shift their business from shop in dispute to their house without any hardship. Need of landlady was genuine and pressing.
4. The petitioners contested the case and filed their written statement. In the written statement, the allegation that Smt. Ram Kumari was owner and landlady of the shop in dispute and the petitioners were tenant in it was admitted. However, it has been stated that she was insisting to enhance the rent which was not accepted by the tenants therefore release application was malafide filed. Radhey Shyam Mishra, husband of the landlady was doing business in one shop in the premises in dispute and after his death Bhagwati Prasad Mishra was doing business in it and the allegation that he was doing pheri on cycle was denied. The release application was filed on false allegations in order to harass the petitioners.
5. The Prescribed Authority by order dated 10.02.2012 found that need of Bhagwati Prasad Mishra for doing his business in the shop in dispute is bonafide and genuine. Allegation that Bhagwati Prasad Mishra was doing business in one shop in the disputed accommodation was not found to be proved. The petitioners were having a house in mohalla Kidwai Nagar where they can shift their business easily as such their was no hardship to them. On these finding the release application was allowed and the landlady was directed to pay two years rent to the petitioners. The petitioners filed an appeal (registered as Rent Appeal No. 33 of 2012) from the aforesaid order. On 04.08.2014, the petitioners filed an application (38-C) for amendment of paragraph-1 of written statement. By the proposed amendment, the petitioners sought to withdraw their admission that Smt. Ram Kumari was owner and landlady of the shop in dispute and have stated that Smt. Ram Kumari and one Sudha Devi was joint owners of the premises in dispute and Sudha Devi did not join with Smt. Ram Kumari in the release application and these fact came to their knowledge on 03.08.2014 during preparation of the appeal for arguments. The amendment application was contested by the respondent, who filed his objection. Additional District Judge, after hearing the parties by order dated 28.08.2014 held that the proposed amendments are in the nature of legal plea which can be argued by the petitioners at the time of final arguments without amending written statement. On these findings the amendment application was rejected. Hence this writ petition has been filed.
6. The counsel for the petitioners submitted that the order of the court below is illegal in as much the proposed amendment amounts to mixed issue of la
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