CR No.6570 of 2010 (O&M) -1- ***** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.6570 of 2010 (O&M) Date of decision:17.05.2011. Sarup Singh ...Petitioner Versus Manjit Kaur and others ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. R.K.Joshi, Advocate, for the petitioner. Mr. Arun Bansal, Advocate, for the respondent. ***** Rakesh Kumar Jain, J. This revision petition is directed against order dated 31.08.2010 passed by the learned Appellate Authority, Hoshiarpur by which application filed by the landlord under Order 6 Rule 17 of the Code of Civil Procedure, 1908 [for short “CPC”] in order to insert the averments in para No.9 of the eviction petition that the demised premises is required for his own use, he is not occupying any other such building or vacated similar premises in the same urban area after the commencement of the Act, has been dismissed. It is alleged that due to oversight, these averments could not be made in the eviction petition though evidence was led in this regard by the landlord when he appeared as AW1. The learned Appellate Authority, however, dismissed the application on the ground that the landlord cannot be permitted to take this plea now at this stage. Learned counsel for the petitioner has submitted that the eviction petition was filed in the year 2001, therefore, proviso to Order 6 Rule 17 of CPC, which has been added vide Code of Civil Procedure (Amendment) Act, 2002 [for short “Amended Act”], would not be applicable to the present case. He further submitted that although it is provided by a Full Bench of this Court in the case of Banke Ram V. Shrimati Sarasvati Devi, 1977(1) R.C.R. (Rent) 595 that ingredients of Section 13(3) have to be pleaded but it has been clarified further in the case of Daulat Ram V. CR No.6570 of 2010 (O&M) -2- ***** Girdhari Lal, 1980 PLR 182 that if the evidence is led in this regard, then the absence of the pleadings would not have any adverse effect. He further relied upon a decision of this Court rendered in the case of Raman Mal V. Faquir Chand and others, 1984(1) Rent Control Reporter, 275 and a decision of the Supreme Court in the case of Gajanan Jaikishan Joshi V. Prabhakar Mohanlal Kalwar, 1990(1) R.C.R. (Rent) 229. On the contrary, learned counsel for the respondents has submitted that the application for amendment cannot be allowed after the trial has commenced until and unless the landlord proves that in spite of due diligence, he could not have raised these facts before the commencement of trial, whereas in the present case these facts were very well within the knowledge of the landlord which cannot be taken now after the dismissal of the eviction petition. He further submitted that by virtue of not taking this plea, a right has accrued to the tenant which cannot be taken away by filling the lacuna at this stage. It is now well settled that the proviso added by virtue of Section 7 of the Amended Act is only prospective and would not apply to the proceedings which had been initiated prior to coming into force of the Amended Act. In the present case, the eviction petition was filed in the year 2001, therefore, the proviso to Order 6 Rule 17 brought through the amended Act would not be applicable to the present case. Secondly, it has been held in the case of Raman Mal (supra) that if the ingredients of Section 13(3)(a) of the Act are not pleaded in the eviction petition, it can be allowed to be pleaded by way of amendment. Similarly, in the case of Gajanan Jaikishan Joshi (supra) wherein a suit for specific performance was filed and one averment with regard to Section 16 of the Specific Relief Act, 1963 could not be taken about the readiness and willingness of the plaintiff to perform his part of the contract which was allowed by way of amendment on the ground that it goes to the root of the case. In any case, the landlord has already led evidence in respect of the averments which have been left out to be inserted in the pleadings, therefore, it would not change the nature of the case. Hence, keeping in view the facts and circumstances of the case, the present revision petition is allowed and the impugned order is hereby set aside though without any order as to costs. May 17, 2011. ( Rakesh Kumar Jain ) vinod* Judge