Point of Law: Categorical admission made in the pleadings cannot be permitted to be withdrawn by way of an amendment.

JUDGMENT :

ROHIT RANJAN AGARWAL, J.

1. Heard Sri. Rohan Gupta, learned counsel for the revisionist and Sri. Saurabh Srivastava, learned counsel for plaintiff-respondent.

2. This revision under Section 25 of Provincial Small Cause Courts Act, 1887 arises out of order dated 19.10.2021 passed by Additional District and Sessions Judge, Court No. 7, Kanpur Nagar dismissing the amendment application of the defendant-revisionist in S.C.C. Suit No. 132 of 2009 under Order VI, Rule 17 C.P.C.

3. Facts in nutshell, are that plaintiff-respondent filed a suit for arrears of rent and ejectment in the court of District Judge, Kanpur Nagar being Suit No. 132 of 2009. It was averred that plaintiff was the owner and landlord of Premises No. 32/17, Express Road, Kanpur Nagar, and basement and ground floor of the said premises was let out to defendant-revisionist at monthly rent of Rs. 10,000/- which included Rs. 5,000/- as rent and Rs. 5,000/- towards maintenance charges, since 01.08.2005.

4. As default was committed by defendant in payment of rent, the said suit was filed. Defendant-revisionist contested the aforesaid suit by filing written statement on 31.07.2010, wherein in Para-3 of written statement the averment made in Para-2 of plaint was not denied and was stated that it was upon plaintiff to prove the execution of the agreement. An application under Order VII, Rule 11 C.P.C. was filed by defendant-revisionist which was rejected on 19.12.2013, thereafter, again an application under Order VII, Rule 11 was filed which was again rejected. The third application filed under Order VII, Rule 11 by defendant revisionist on 24.08.2021 was not pressed by revisionist on 24.09.2021. However, an amendment application was filed on 30.09.2021 for amending the written statement by inserting Para 12-A and 12-B wherein the plea was sought to be introduced that the rent claimed at Rs. 5,000/- per month by landlord included Rs. 1,500/- as rent and rest of amount as security charges. An objection was filed by plaintiff-respondent on 04.10.2021 specifically stating that after affirming of issues the oral testimony of PW-1 was recorded and was cross-examined by defendant-revisionist. The application filed under Order VI, Rule 17 after 11 years has been filed to delay the matter, and the same is barred by proviso to Order VI, Rule 17 as the trial had already commenced. The court below after hearing the parties on 19.10.2021 rejected the amendment application. Hence, the present revision.

5. Sri. Rohan Gupta, learned counsel for defendant-revisionist submitted that document relied upon by plaintiff-respondent as rent agreement is an unregistered document and the amendment has been sought to clarify the position that rent of Rs. 5,000/- included the rent and other charges including the taxes. He next submitted that amendment was necessary for determining the real question in controversy and the court may allow amendment subject to imposition of cost. Reliance has been placed upon decision of co-ordinate Bench of this Court in case of Ishaq @ Gama Ahmad vs. Smt. Champa Devi, 2016 (117) ALR 742, Para Nos. 11 and 12, which are extracted here as under:

“11. In the light of the aforesaid principles of law laid down by the Hon'ble Supreme Court and this Court and also looking to the nature of the amendment of the pleadings sought to be made in the written statement, I find that the proposed amendment is legal in nature which does not cause any prejudice to the opposite party land lady. The amendment application cannot be refused only on the ground that the matter is old and there is a direction of this Court to decide the case expeditiously because the courts are expected to do justice between the parties and not to go into the technicalities.

12. In view of the above, the S.C.C. Revision No. 117 of 2015 deserved to be allowed and the order dated 19.09.2015 rejecting the amendment application of the revisionist tenant is set aside. Consequently amendment application Kha 61 see