C.R.No.5933 of 2011 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. C.R.No.5933 of 2011 Date of decision: 26.9.2011 Sunil Kumar and another ...Petitioner vs Vipin Kumar ....Respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG. --- Present: Mr.Jastej Singh, Advocate, for the petitioners. -- Rakesh Kumar Garg,J. This is tenant's revision petition against the order dated 5.8.2011 passed by Rent Controller, Yamuna Nagar whereby application filed by the petitioner for amendment in the written statement has been declined. The facts of the case in brief are that respondent-landlord filed an ejectment petition against the petitioner on the ground of personal necessity and non payment of arrears of rent. The petitioner denied the ground of personal necessity of landlord stating that the respondent was unmarried having no child and was carrying on the business of mobile phones in the shop in the same locality and had recently got vacated one more shop in Devi Bhawan Bazar Chowk, Jagadhri, which was earlier in the possession of some tenant and the same was lying vacant at the spot. It has been further averred in the application that during the course of trial the respondent-landlord has newly constructed three more shops along with previous shop in which he is carrying of a business in the name and style of C.R.No.5933 of 2011 2 Jyoti Communications and as a matter of fact the shops are almost near completion and thus due to the change in circumstances and consequently the alleged need of the landlord being fulfilled an application under Order 6 rule 17 CPC for amendment of the written statement to bring the aforesaid subsequent event to the notice of the Rent Controller was made, however, the Rent Controller without application of mind and without appreciating the law on the subject has dismissed the said application for amendment of the written statement vide the impugned order. Challenging the aforesaid order, learned counsel for the petitioner has vehemently argued that the subsequent events which are sought to be incorporated in the written statement are very vital and go to the very root of the controversy between the parties and the said application for amendment has been filed without any delay, whatsoever, inasmuch as, the construction of shops is yet to be completed. Moreover, in view of the construction of these shops the alleged need of the landlord, if any, ceased to exist and thus the amendment in the written statement should have been allowed by the Rent Controller. In support of his case, learned counsel for the petitioner has further relied upon a judgment of this Court in the case of Amrit v.Harish Kumar and another, Civil Revision No.2150 of 2009, decided on 18.5.2009. I have heard the learned counsel for the petitioner and have perused the impugned order and the averments made in this petition. While passing the impugned order, the Rent Controller has observed as under:- “ I have heard the learned counsel for the applicants as well as counsel for the respondent and have perused the case C.R.No.5933 of 2011 3 file very carefully. In support of his contentions learned counsel for the applicants Shri IS Bhatia has placed reliance upon Andhra Bank v/s ABN Amro Bank N.V. And others, 2007 (3) CCC 722 (SC) and Ashok Kumar Vs. Mohinder Pal Singh and another, 2008 (1) CCC 275 (P&H). Whereas it was held in Andhra Bank ABN Amro Bank N.V. And others 2007 (3) CCC 722 (SC) that at the time of considering on application for amendment of pleading the court should not go into the merits of the controversy between the parties, the Ashok Kumar's case (supra) cited by learned counsel is distinguishable on facts and circumstances in as much as in that case the respondent had shifted with his family to another place and possession of one shop was vacated by a tenant and delivered to petitioner. However, in the present case it is case of the applicants that respondent has constructed three more shops. It is coming up that the applicant has not disclosed complete facts and particulars to show as to how the proposed amendment would in anyway enhance the defence of respondents or dilute the grounds taken by the petitioner for Ejectment in as much as it has simply been pleaded in the application that during the pendency of the Ejectment petition the respondent has constructed three more shops. However, application nowhere discloses the date of accusation or construction of those shops by respondent so as to enable this court to take view as to whether in spite of due diligence applicants could not have raised matter during the trial. It is settled proposition of law that no amendment can be allowed after trial has commenced unless it is prima facie proved that in spite of due diligence applicants could not have taken such a plea even otherwise. It is further pertinent to observe that the case is already at the stage of rebuttal and arguments and at this belated stage applicants cannot be allowed to reopen the entire case and to re-agitate. It thus does not enable this court in any manner to consider that amendment sought by applicant is necessary for C.R.No.5933 of 2011 4 the proper determination of real question of controversy between the petitioner and tenant in the present case. It has been argued by learned counsel for applicants that in view of emergency construction of three shops need of respondent has ceased to exist and petition become infructuous. In these circumstances no ground is made out to allow the amendment application. Resultantly, the present amendment application is hereby dismissed with no order as to cost”. Thus ,a perusal of the impugned order would show that it is the case of the petitioner that respondent has constructed three more shops. However, the complete facts have not been disclosed in the application for amendment and particulars to show as to how the proposed amendment would in any way enhance the defence of the petitioner or dilute the grounds taken by the respondent in the ejectment application. It may also be noticed that the application for amendment nowhere discloses the date of construction of those shops by the respondent -landlord so as to enable the Court to take the view as to whether in spite of due diligence the petitioner could not have raised the matter earlier. It is the settled proposition of law that no amendment can be allowed after the trial has commenced unless it is prima facie proved that in spite of due diligence the petitioners could not have taken such a plea even otherwise. It may also be noticed that the case is already at the stage of rebuttal and arguments and at this stage petitioner cannot be allowed to re-open the case. Not only this, the Rent Controller has also recorded a finding that in any manner, the proposed amendment does not enable the Court to consider that amendment sought by the petitioner was necessary for the proper determination of real controversy between the parties. C.R.No.5933 of 2011 5 In view of the foregoing discussion, I find no merit in this revision petition and the same is dismissed. (Rakesh Kumar Garg) Judge September 26, 2011 rk