IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA C.R. No. 61 of 2011 and C.R. No. 63 of 2011. Judgment reserved on : 30.5.2011. Date of Decision: 03.06.2011 C.R. No. 61 of 2011 Darshan Kumar Wahi …Petitioner Versus Smt. Sneh Kuthiala ..Respondent. C.R. No. 63 of 2011 Gurmeet Rajpal Singh …Petitioner Versus Smt. Sneh Kuthiala and others ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Petitioner(s) : Mr. G.C.Gupta, Senior Advocate with Mr. Ashish Jamalta, Advocate (in both the petitions) For the Respondent(s) : Mr. B.C.Negi, Advocate, for respondent No.1 (in both the petitions). Kuldip Singh , Judge This judgment shall dispose of Civil Revision No. 61 of 2011 and Civil Revision No. 63 of 2011 in view of similarity of points involved in both the petitions. C.R. No. 61 of 2011: 2. The order dated 6.4.2011 passed by the learned Rent Controller (1), Shimla in Case No. 43-2 of 2008 rejecting 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes the application of petitioner under Order 6 Rule 17 of the Code of Civil Procedure has been assailed by the petitioner who is a tenant. 3. The brief facts are that respondent had filed a petition against the petitioner under Section 14 of the H.P. Urban Rent Control Act, 1987 (for short ‘Act’) for ejectment on the grounds that the premises has become unsafe for human habitation, premises is required bonafide for the purpose of building or rebuilding which cannot be carried out without the premises being vacated, the petitioner has committed such acts which have materially impaired the value and utility of the premises. The petitioner has contested the petition by filing reply. The respondent has already led evidence. The petition was fixed for the evidence of the petitioner. In the meantime, the petitioner filed an application under Order 6 Rule 17 CPC for amendment of reply and raising preliminary objection No.4. The respondent contested the petition. The learned Rent Controller dismissed the application on 6.4.2011. 4. The order dated 6.4.2011 has been assailed on the grounds that the learned Rent Controller has exercised jurisdiction wrongly, illegally and with material irregularity in not allowing the amendments. The learned Rent Controller has given findings on the merits of the amendments which is not permissible in law. The truth or falsity of the amendment is not to be seen at the time of consideration of the amendment application. The amendment sought is necessary in order to adjudicate the real controversy between the parties. The application filed by the petitioner was bonafide. 5. The due diligence is to be seen from the averments made in the application. The principles of Order 6 Rule 17 CPC are not strictly applicable to rent proceedings. In case it is proved that all the buildings form a compact unit, the premises in occupation of the petitioner cannot be re- constructed unless all the owners give consent to it. The learned Rent Controller has wrongly observed that the averments sought to be introduced by way of amendment had already been taken by the petitioner. 6. The learned Rent Controller has wrongly granted last opportunity to the petitioner for producing his evidence ignoring the fact that application was filed on 15.3.2011 and reply to the application was filed on 21.3.2011 and the application was decided on 6.4.2011. It has been lastly submitted that the entire approach of the learned Rent Controller in dismissing the application is wrong, illegal and not sustainable. C.R. No. 63 of 2011: 7. The order dated 6.4.2011 passed by the learned Rent Controller (1), Shimla in Case No. 42-2 of 2008 rejecting the application of petitioner and proforma respondents under Order 6 Rule 17 of the Code of Civil Procedure has been assailed by the tenant almost on the similar grounds as taken in C.R. No. 61 of 2011. 8. I have heard Mr. G.C.Gupta, Senior Advocate on behalf of the petitioner(s) in both the petitions and Mr. B.C.Negi, Advocate representing Smt. Sneh Kuthiala in both the petitions and have also gone through the record. Mr. Gupta, learned counsel for the petitioner has submitted that the learned Rent Controller has primarily dismissed the amendment application on the grounds that averments sought to be incorporated by way of amendment have already been taken by the tenant in the unamended reply. The petitioner has not shown due diligence for not taking the pleas earlier before the commencement of trial. The amendment application is nothing but delaying tactics of petitioner. It has been submitted that amendments sought are necessary in order to adjudicate the real controversy between the parties. The Order 6 Rule 17 CPC is not strictly applicable in rent proceedings. The petitioner has not caused delay in the proceedings. The learned Controller took more than one year in deciding the application. The amendment application is bonafide. Mr. Negi, has submitted that the learned Rent Controller has exercised jurisdiction properly, assuming Orders 6 Rule 17 CPC is not applicable in rent proceeding but still principles of Order 6 Rule 17 CPC are applicable in rent proceedings and, therefore, impugned order cannot be faulted on the ground that Order 6 Rule 17 CPC strictly is not applicable in rent proceedings. 9. In C.R. No. 61 of 2011 the respondent has filed the petition for ejectment on the grounds that the premises in occupation of the petitioner has become unsafe and unfit for human habitation. The premises is required bonafide for the purpose of building or rebuilding and such building or rebuilding cannot be carried out without the building/premises in question being vacated by the occupants. The steps have already been taken for getting the plans etc. sanctioned by the M.C. Shimla. The tenant has made Parchatti in the premises without the permission of the landlord as well as M.C.Shimla which has affected the light and air to the premises in question and has thus committed such acts as are likely to impair materially the value or utility of the premises. 10. The petitioner has contested the petition and has taken preliminary objections of bar of Order 9 Rule 8 CPC in view of the dismissal of petition No. 95/2 of 1998 on 7.8.2003. The petition is malafide as the petitioner did not agree to enhance the rent as demanded by the respondent. The petition is not maintainable, the same has not been filed in accordance with rules. On merits, it has been denied that the premises in occupation of the petitioner has become unsafe and unfit for human habitation. The petitioner has also denied the claim of the respondent that the premises in question is required by the respondent bonafide for building or rebuilding which cannot be carried out without getting the premises vacated. 11. The petitioner vide application dated 14/15.3.2010 intended to amend the reply by adding preliminary objection No.4 to the extent that the need of the petitioner for reconstruction is not bonafide in view of the fact that premises No.22, Lower Bazar, Shimla and the other adjoining buildings form a compact unit and unless all the buildings are vacated, the reconstruction of the premises in occupation of the petitioner is not possible. The respondent has no sanction from the competent authority for reconstruction which is sine qua non for maintaining a petition on the ground of reconstruction. The respondent has made encroachment upon the Municipal land towards the back side of the building and without vacating the same no sanction will be granted in favour of the respondent. 12. The respondent contested the amendment application by taking preliminary objections of maintainability, application has been filed to delay the proceedings and the application is malafide. On merits, it has been stated that the pleas which the petitioner intends to take by way of amendment have already been taken in the unamended reply to the main petition filed by the petitioner. In C.R. No. 63 of 2011 the petition has been filed by the respondent No.1 against petitioner and proforma respondents on similar grounds as have been taken against the tenant in C.R. No. 61 of 2011. The tenants have contested the ejectment petition by filing reply which is almost similar on material particulars as reply filed by tenant in C.R. No. 61 of 2011. The petitioner in C.R. No. 63 of 2011 has also filed application dated 14/15.3.2010 for amendment of the reply by adding similar additional objection No.4 as sought to be added by tenant in C.R. No. 61 of 2011. 13. The learned counsel for the petitioner has relied Dr. S.C.Jain vs. Shrimati Sushila Devi 1973 ILR (HP) 1238, Smt. Surinder Kaur vs. Sh. Mohinder Bahadur Singh 1979 (2) RLR 345, Gurnam Singh vs. Roshan Lal 2009 (1) RLR 105 in support of his submission that the Rent Controller is not a Court but a persona designata. The Code of Civil Procedure as such is not applicable to the proceedings before the Rent Controller. The learned Senior Advocate has relied North Eastern Railway Administration vs. Bhagwan Das 2008 (3) ICC 612 (SC) in support of his submission that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. He has also relied Peethani Suryanarayana & Anr. Vs. Repaka Venkata Ramana Kishore & Ors. 2009 (2) ICC 1 (SC) wherein it has been held that power of amendment on the part of the court is circumscribed by factors (i) the application must be bonafide; (ii) the same should not cause injustice to the other side and (iii) it should not affect the right already accrued to the other side. Mr. Gupta has taken support from Bollepanda P.Poonacha & Anr. Vs. K.M.Madapa 2008 (2) CCC 138 (SC) that amendment of written statement deserves more liberal consideration than an application for amendment of plaint. He has also relied Usha Devi vs. Rijwan Ahamd and others (2008) 3 SCC 717 that merit of the amendment not a relevant consideration for allowing prayer for amendment. Ramchandra Sakharam Mahajan vs. Damodar Trimbak Tanksale (D) & Ors. 2007 (2) RLR 379 (SC) has been relied in support of the submission that amendment is to be allowed when it would enable the Court to pin-pointedly consider real dispute between the parties and would enable the Court to render a decision more satisfactorily to its conscience. 14. The learned counsel representing Smt. Sneh Kuthiala in both the petitions has relied Inder Pal Thakur vs. Hukam Chand and another 1997 (3) SLC 358 in support of the submission that plea is not available to the tenant that there are two adjacent buildings having common walls and if the building is demolished, it will cause damage to the other buildings and the owners of the adjacent buildings will raise objection to the demolition. This is a matter between the landlord and the adjacent owners and it is not a matter on the basis of which the tenant can resist the petition for eviction. Vidya Bhai & Ors. vs. Padam Lata and another (2009)1 RCR 120 (SC) has been relied in support of the submission that the amendment in the pleadings can be allowed before the commencement of the trial and not thereafter, it is the duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Ajendraprasadji N. Pandey and another vs. Swami Keshavprakeshdasji N. and others (2006) 12 SCC 1 has been relied in support of the submission that a mere averment in the amendment application that the same could not be submitted before the court inspite of utmost care taken by the applicants does not satisfy the requirement of Order 6 Rule 17 without giving the particulars which would satisfy the requirement of law that the matters now sought to be introduced by the amendment could not have been raised earlier inspite of due diligence. 15. Jagat Pal Dhawan vs. Kahan Singh (dead) by LRs. And others (2003) 1 SCC 191 has been relied by Mr. Negi in support of his submission that Section 14(3) (c ) of the H.P. Urban Rent Control Act, 1987 does not lay down that the availability of requisite funds and availability of building plans duly sanctioned by the local authority must be proved by the landlord as an ingredient of the provision or as a condition precedent to his entitlement to eviction of tenant. In the facts and circumstances of a given case the court may look into such facts as relevant, though not specifically mentioned as ingredients of the ground for eviction, for the purpose of determining the bonafides of the landlord. Mr. Negi has also relied this judgment on the point that the objection if any of the neighbours is to be settled by the landlord. He has submitted that in this context the submission of tenants that premises in question with other adjoining buildings form a common block has no relevance. 16. The learned counsel for the petitioners has contended that Order 6 Rule 17 CPC is not applicable before the Rent Controller in ejectment petition. It has not been pointed out by the learned counsel for the petitioners that in case Order 6 Rule 17 CPC is not applicable then what provision is applicable before the Rent Controller for amendment of the pleadings. In case the Code of Civil Procedure is not strictly applicable still it cannot be said that the principles of Code of Civil Procedure are not applicable before the Rent Controller. The rent proceedings are in the nature of civil proceedings. In case letter of Order 6 Rule 17 CPC is not applicable still the applicability of spirit behind that provision cannot be ruled out. 17. The petitioners themselves have filed the amendment applications under Order 6 Rule 17 CPC. Therefore, the contention raised on behalf of the petitioners that principles of Order 6 Rule 17 CPC are not applicable, cannot be accepted. In any case the petitioners otherwise were required to show due diligence for not taking pleas in the original replies. The original replies filed in the petitions are dated 23.5.2009. The amendment applications are dated 14/15.3.2010. The petitioners in the amendment applications have alleged that facts sought to be incorporated by way of amendment either were not in the knowledge of the petitioners at the time of filing of the reply or have come to the knowledge of the petitioners after the same. There is no averment of due diligence in the amendment application nor due diligence on the part of the petitioners emerges from the amendment applications for not incorporating the pleas sought to be incorporated by way of amendment in the original replies. 18. The contention has been raised that re- construction is not bonafide in view of the fact that premises in question and the other adjoining buildings are compact unit and unless all the buildings are vacated, reconstruction of the premises in question is not possible. In the unamended reply, the tenants have already taken the plea that landlady has not bonafide intention to reconstruct the building which cannot be done without the prior consent of the adjoining owners. It is for the landlady to see how reconstruction is to be raised. This plea is not available to the tenants in view of Jagat Pal Dhawan and Inder Pal Thakur (supra). 19. The plea of alleged encroachment of landlady upon the municipal area towards backside of the building and without vacating the same, no sanction will be granted in favour of the landlady is in the nature of assumption of tenants. In case the landlady will not get the sanction for raising construction, then it is for the landlady to face the situation. There is nothing in the amendment application that sanction for raising reconstruction of the premises in question has anything to do with the alleged encroachment of municipal land by the landlady. In the amendment application there is no plea that the premises in question itself is standing on encroached municipal land. In any case in the unamended reply also the plea has been taken that landlady is the owner of the building only and not the owner of the land and she cannot reconstruct the building without no objection from the owner of the land. 20. The contention has also been raised on behalf of the tenants that reconstruction is not bonafide as the landlady has no sanction/approval from the competent authority for reconstruction. The impact of absence of sanctioned plan, if any, will be considered by the learned Rent Controller at the time of final hearing of the ejectment petitions on merits. 21. No doubt, the amendment of reply is to be considered liberally but it cannot be stretched to this extent that anything and at any time can be allowed to be incorporated by way of amendment in the reply. The relevancy of the amendment is also to be seen keeping in view the controversy involved. The amendments sought by the tenants are for opposing the ground of bonafide reconstruction taken by the landlady. The tenants have already taken the plea of malafide in the unamended reply. The tenants have not commenced their evidence. The tenants have the opportunity to rebut the ground of bonafide reconstruction of landlady by leading legal evidence. 22. In C.R. No. 61 of 2011 the evidence of the landlady was closed on 22.10.2009 and the petition was fixed for evidence of tenant on 24.12.2009 but no steps were taken by the tenant for summoning the witnesses. The petition was fixed on 15.3.2010 again for evidence of the tenant. On that date also, witnesses of tenant were not present nor any steps were taken but tenant filed an application for amendment of the reply which was decided on 6.4.2011 and the petition was fixed on 30.5.2011 for evidence of the tenant as last opportunity. 23. In C.R. No. 63 of 2011 the landlady had closed her evidence on 23.10.2009. The evidence of the tenant was fixed on 28.12.2009 and 18.3.2010. On both dates, no witness was examined by the tenant nor steps were taken for summoning the witnesses. However, on 18.3.2010 tenant had filed an application for amendment of the reply which was decided on 6.4.2011 and the petition was fixed on 30.5.2011 for evidence of the tenant as last opportunity. Thus, including the date 30.5.2011, the tenants were given three opportunities for examining their witnesses. On 6.4.2011 the learned Rent Controller had given 54 days to the tenants for examining their witnesses on 30.5.2011. In the facts and circumstances of the case the adjournment of 54 days for producing the witnesses on the third opportunity cannot be said to be arbitrary exercise of jurisdiction by the Rent Controller by ordering that it would be last opportunity for the tenants to examine the witnesses. 24. The learned Rent Controller has properly appreciated the material on record in refusing to allow the amendment of the reply. The petitioners have failed to make out any case of wrongful exercise of jurisdiction by the learned Rent Controller in both the petitions. There is no merit in the petitions, hence, both the petitions are dismissed. The parties, through their counsel, are directed to appear before the learned Rent Controller (1), Shimla on 23.6.2011, on which date, the learned Rent Controller shall fix another date for recording the evidence of the petitioners herein. The record be sent back to the learned Rent Controller (1) Shimla, so as to reach before the date fixed. All pending applications also stand disposed of. June 3, 2011 ( Kuldip Singh ) (GR) Judge. .