The Allahabad High Court has held that it is a settled law that the Court should be liberal in granting amendment so as to avoid unnecessary complication and multiplicity of litigations, but, once the trial has commenced, the party making an application for amendment, has to spell out clearly the cause which had prevented it from bringing the amendment prior to the commencement of trial and also disclosing the reason that despite due diligence it was not in the notice of the party and only when the said fact came into the knowledge of the party claiming amendment, that such application was filed.
A single-judge bench of Justice Rohit Ranjan Agarwal passed this order while hearing a petition filed by A.K. Dubey And Another.
The revision filed under Section 25 of Provincial Small Cause Courts Act, 1887 against order dated January 17, 2020 passed by Additional District Judge/Fast Track Court-II (Constituted under 14th Finance Scheme), Gorakhpur, dismissing amendment application filed under Order VI, Rule 17 CPC.
A lease agreement was executed on November 3, 2009 between the plaintiffs-revisionists and Exide Industries Ltd/ defendant No 1 in respect of premises at Narayan Complex, Budha Vihar Commercial Yojana, Deoria Bypass, Gorakhpur, UP, measuring 2600 sq ft, the owner of which is the plaintiffs-revisionists and was let out for a period of five years w.e.f November 1, 2009 to October 31, 2014 to the lessee/ Exide Industries Ltd (opposite party No 1) on a monthly rent of Rs 39,000.
According to the plaintiff, after expiry of lease, the defendant was required to deliver vacant possession of premises but he failed to deliver the same and thus the plaintiff was entitled for damages for use and occupation of premises at the rate of Rs 2,000 per day in addition to monthly agreed rent.
The suit was filed by the plaintiff claiming relief for decree of Rs 1,25,000 against defendant and a decree for the amount of damages for use and occupation at the rate of Rs 2,000 per day besides monthly rent of Rs 47,000.
The suit was filed on December 10, 2014. The defendant appeared and filed written statement stating therein that they had refused to extend the lease agreement, as requested by the plaintiff, and had partly removed their goods, which included batteries and inverters by October 26, 2014 and rest of the goods was to be removed before the terms of lease agreement came to an end but the revisionist came to the premises on October 26, 2014 and started abusing employees of the lessee-defendant No 1, which forced them to run away from the premises. Thereafter, the lock was put illegally by the revisionists on the premises.
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According to the defendant, stock of batteries and office furniture etc. were still lying inside the premises. Further, the defendant filed an application challenging the jurisdiction of Court to entertain the plaint on the ground that it was limited only for recovery of interest in such property and there being no determination of tenancy nor prayer for eviction from the premises in question was made.
Thus, in view of Section 15 read with Article 4 of Schedule II of Act, 1887, the suit was not maintainable. The said application was contested and an objection was filed by the revisionist on October 08, 2015.
The said application was rejected on January 18, 2016 against which a Revision was filed, which is still pending.
On December 11, 2018, an amendment application was filed by plaintiff under Order VI, Rule 17 CPC, by which he has sought amendment in relief clause seeking arrears of rent from November 1, 2014 to October 31, 2018 and also sought eviction from property in dispute. The amendment application was contested by the defendant by filing an objection.
The Court below order dated January 17, 2020 rejected the amendment application hence the present revision.
A.P. Tiwari, the counsel appearing for the revisionists, submitted that the Court below on the vague ground had rejected the amendment application sought by the plaintiff. He contended that there was no delay in seeking amendment on the part of plaintiff and the Court below should have considered that neither the rent was being paid by the defendant nor possession was handed over and the plaintiff was suffering great loss as no rent has been tendered since November 1, 2014.
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The Court observed that the short question, which emerges for consideration is, “whether post commencement of trial of suit, an application under Order VI, Rule 17 CPC simpliciter without disclosing any reason as to the delay caused in moving the same can be entertained ignoring the proviso to Order VI, Rule 17 CPC?”
Thus, from the conjoint reading of the amended provisions of Order VI, Rule 17 CPC, it is abundantly clear that the Trial Court has to be cautious while granting or rejecting an amendment once the trial commences.
The Court said that,
Now coming to the case in hand, it was on December 10, 2014 that the plaintiff-revisionist had filed a suit for damages violating the terms of the lease agreement. The plaintiff was fully aware that the lease agreement had come to an end on October 31, 2014 and the remedy for evicting the defendant from the premises was already available to him at that time, which he did not choose to claim.
In fact, the plaintiff only wanted damages for the occupation of the property by the defendant at the rate of Rs 2,000/- per day, and had tried to enforce Clause 3(c) of the lease agreement. In the meantime, the defendant in the case had filed suit before Civil Judge (Senior Division), Gorakhpur claiming relief that the plaintiff herein may permit the defendant to remove his batteries and inverters stock, which was still lying in the premises in dispute on which the lock of the plaintiff was hanging. It was only in the year 2018 that notice under Section 106 of Act, 1882 was served on January 31, 2018 and February 26, 2018 for arrears of rent and ejectment from the premises in dispute.
In the meantime, issues were decided by the Court below on February 07, 2017 and March 03, 2017 and the plaintiff was already examined before the Court below.
The Court further said, there is no whisper as to why there was delay on the part of plaintiff in filing amendment application on December 11, 2018. From perusal of amendment application, it is clear that only amendment has been sought in the plaint claiming arrears of rent and ejectment from property in question and no compliance of proviso to Order VI, Rule 17 CPC has been made by plaintiff while making such application.
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The plaintiff-revisionist not only failed to adhere to the proviso to Rule 17 of Order VI CPC by stating reason that despite due diligence the fact pleaded was not within the knowledge and could not be raised earlier but is also barred by Order II, Rule 2 CPC as the suit filed by the plaintiff did not include the whole claim which the plaintiff was entitled to make in respect of the cause of action.
The Court also said that the amendment is a fresh cause of action and by the amendment, the suit for damages cannot be amended. Moreover, the relief, which is being claimed by the revisionist through amendment, was available to him when the suit for damages was filed by him on December 10, 2014 as the lease agreement had already expired on October 31, 2014 and the plaintiff could have claimed the relief for arrears of rent and ejectment, but he chose to press the relief of damages on the basis of Clause 3(c) of the lease agreement, which had come to an end on October 31, 2014.
Thus, the Court found that post amendment in Order VI, Rule 17 CPC, which was brought in the year 2002, the party seeking amendment has to adhere to the proviso while making an application in case of commencement of trial. It is not disputed to either of the parties that after framing of issues in the year 2016, issues had already been decided and the oral evidence of plaintiff has already concluded. It is well settled that Section 17 of Act, 1887 provides that provisions of Code of Civil Procedure are applicable in the matters dealt by the Judge Small Cause Court under the Act, 1887.
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Considering the facts and circumstances of the case the Court finds that the Trial Court had rightly rejected the amendment application of the revisionist as it does not disclose any reason for filing the same post-commencement of trial, which is against provision to Order VI Rule 17 CPC.
Therefore, the Court dismissed the Revision Petition.