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IN THE HIGH COURT OF ALLAHABAD
VIVEK KUMAR BIRLA, J.
Satyapal Chopra - Appellant
Versus
Additional District Judge and Another - Respondent
WRIT -A No. 4854 of 2021
Decided On : 19-03-2021
Civil Procedure Code ,1908 – Section 11 - Order 6,21 - Rule 17,98,101,99,97,102,103,100 - U.P. Act ,1972 - Sections 21(1)(a),22 - Workers Compensation Act 1958 – Sections 4,4(1),5 - Challenge – Application - writ petition filed by tenant was entertained and interim order was granted vide order. Thereafter petition was allowed vide order on concession given by the counsel for the landlord that he has no objection in case writ petition is allowed.Thereafter, this amendment application was filed before the appellate court. This application was contested by the tenant-petitioner by filing objections, however, the objections were rejected and since there was delay, the amendment application was allowed by imposing cost of Rs. 1,000/-and the appellate court fixed a date by observing that short dates will be fixed by the lower appellate court in the light of the order of this Court passed in Writ-A - Whether or not it was instituted prior thereto - whether a matter might have been urged in the earlier proceedings, the court must ask itself as to whether it could have been urged. In deciding whether the matter ought to have been urged in the earlier proceedings.
Finding of the court: Court has noticed fact that ultimately the amendment application though rejection whereof by the prescribed authority was upheld by the revisional court, was kept alive i.e. to be challenged while challenging the final order (obviously, if the need so arise) and that the affidavit 17.2.2009 was filed in evidence wherein it was stated that the landlord is a practising advocate and he has no other means of earning except the legal profession. It would be appropriate to remand back the matter to the lower appellate court with liberty to both the parties to amend their pleadings, if they so desired and lead evidence on all the issues as the parties may be advised - We are not inclined to decide this question on a priori consideration, for the simple reason that under the CPC, both res judicata (in the substantive part of Section 11) and constructive res judicata (in Explanation IV) are embodied as statutory principles of the law governing civil procedure. Fundamental policy of the law is that there must be finality to litigation. Multiplicity of litigation enures to the benefit, unfortunately for the decree holder, of those who seek to delay the fruits of a decree reaching those to whom the decree is meant - existence of a "former suit" which has been 'heard and finally decided' is mandatory, whereas in the present case appeal is pending, which is in continuation of the original suit/release proceedings, wherein due to rejection of amendment application, the amended grounds (as permitted now) were neither in issue nor were heard and finally decided. Thus, in my opinion, the mandatory element of 'former suit' 'heard and finally decided' is missing in respect of the amendment allowed. Therefore, the Explanation IV to Section 11 CPC, which also requires 'former suit' would also not be attracted in this case.
Result: Petition dismissed
JUDGMENT :
1. Heard Ms. Shreya Gupta, learned counsel for the petitioner and perused the record.
2. Present petition has been filed challenging the impugned order dated 20.2.2021 passed by the Additional District Judge, Lalitpur (respondent no. 1) in Rent Appeal No. 3 of 2009 (Satyapal Chopra vs. Mahendra Kumar).
3. By the impugned order dated 20.2.2021 amendment application filed under Order 6 Rule 17 CPC filed by the landlord at the appellate stage was allowed by the lower appellate court after noticing the fact that the amendment in pleadings by substituting the paragraphs and adding the grounds in release application was permitted by this Court vide order dated 13.8.2018 passed in Writ -A No. 535 of 2018 (Shri Satypal Chopra vs. Shri Mahendra Kumar), however, since the amendment was being sought after a delay, therefore, the same was allowed by imposing cost of Rs. 1,000/-.
4. The release application was allowed by the prescribed authority on the ground of bona fide need of the landlord for opening a gift-item Shop. The appeal filed by the tenant was dismissed. The writ petition being Writ-A No. 534 of 2018 filed by the tenant was entertained and interim order was granted vide order dated 31.1.2018. Thereafter, the petition was allowed vide order dated 13.8.2018 on the concession given by the counsel for the landlord that he has no objection in case writ petition is allowed.
5. Thereafter, this amendment application was filed before the appellate court. Several paragraphs are being sought to be amended/substituted and added. Two paragraphs related to need of the landlord and one paragraph was with regard to subsequent developments i.e. purchase of property by the tenant in the year 2018. This application was contested by the tenant-petitioner by filing objections, however, the objections were rejected and since there was delay, the amendment application was allowed by imposing cost of Rs. 1,000/-and the appellate court fixed a date by observing that short dates will be fixed by the lower appellate court in the light of the order of this Court dated 13.8.2018 passed in Writ-A No. 534 of 2018.
6. Challenging the impugned order, submission of learned counsel for the petitioner, placing reliance on the judgment of Hon'ble Apex Court rendered in the case of Asgar & others vs. Mohan Varma & others, 2020 (16) SCC 230, is that in the present case principle of constructive res-judicata would apply and therefore, such amendment cannot be allowed. It is submitted that the grounds that are being sought to be amended now were, in fact, sought in the year 2005 and an affidavit was filed in 2009 that he need shop in question for his chamber for legal profession and were rejected but shop was released on the ground that the shop is needed for starting business of gift items, therefore, the same cannot be permitted now.
7. I have considered the submissions advanced by the learned counsel for the petitioner at length and perused the record.
8. To appreciate the controversy involved in the present case, it would be relevant to take note of the order passed by this Court in Writ-A No. 534 of 2018 (Shri Satyapal Chopra vs. Shri Mahendra Kumar) dated 31.1.2018, which is quoted as under:
On 24.01.2018, this petition was heard at length and after incorporating the facts of the case, an order was passed as under:
"Heard Shreya Gupta, learned counsel for the defendant-petitioner/tenant and Sri P.K. Jain, learned Senior Advocate assisted by Sri Abu Bakht, learned counsel for the plaintiff-respondent.
Briefly stated facts of the present case are that House No.307/1 (New No.340/1), Katra Bazar, Lalitpur, was originally owned by one Sri Ratan Chandra Jain. In the said house there is a shop in which the defendant-petitioner is a tenant at a monthly rent of Rs.85/-s
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