IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Civil Revision No.:149/2010 Reserved on: 24.12.2010 Decided on:6.1.2011 _____________________________________________ Moti Ram. …Petitioner. Versus Shankar Kumar and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1yes For the petitioner : Mr. Vikas Bhardwaj, Advocate. For the Respondents: Nemo. _____________________________________________________ Rajiv Sharma, Judge. This Revision Petition has been directed against the order dated 2.11.2010 passed by the Rent Controller, Civil Judge (Junior Division), Kangra in Rent Petition No. 3/2007. 2. Material facts necessary for the adjudication of this petition are that respondent No.1-landlord (hereinafter referred to as ‘landlord’ for convenience sake) has sought eviction of the petitioner and proforma respondents (hereinafter referred to as ‘tenants’ for convenience sake) on 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 two grounds, firstly that the tenants are in arrears of rent and secondly, the landlord requires the shops in question bona fide for the purpose of building and rebuilding and such rebuilding cannot be carried out without the demised shops being vacated. The tenants filed reply to the petition. However, during the pendency of the petition, tenant Moti Ram filed an application, under order 6 rule 17 of the Code of Civil Procedure, seeking amendment to the reply. The amendment was sought primarily on the ground that the State of Himachal Pradesh was the true owner of the land and shops and the mutation of proprietorship of the shops in question had been wrongly attested in favour of the landlord and no sanction had been accorded by the State of Himachal Pradesh for the construction and reconstruction. The application was contested by the landlord. The gist of the reply filed by the landlord was that the amendment was not necessary for deciding the real controversy between the landlord and tenants. It was also averred that the tenant always knew about the attestation of proprietorship of shops dated 24.8.1982. The learned Rent Controller dismissed the application on 2.11.2010, hence, the present revision petition. 3. Mr. Vikas Bhardwaj has strenuously argued that the order dated 2.11.2010 has been passed by the learned 3 Rent Controller by ignoring the settled principles of law. According to him, the amendment to reply was necessary for deciding the real controversy between the landlord and tenants. 5. I have heard Mr. Vikas Bhardwaj and have perused the copy of petition, replies filed by the tenants and application under order 6 rule 17 of the Code of Civil Procedure and the reply filed thereto. 6. The petition has been filed seeking eviction of the tenants on the ground of arrears of rent and the building was required bona fide by the landlord for building and rebuilding and the same cannot be carried out without the premises being vacated by the tenants. Tenant Moti Ram has sought the amendment in the reply by inserting that proprietary rights have wrongly been conferred in favour of the landlord vide mutation No. 52 dated 24.8.1982. His further case was that the Government has not sanctioned the plans for building and rebuilding. 7. The application for amendment has been preferred by the tenant at the stage when the case was listed for presence of RWs and last opportunity had been granted to adduce their evidence. The tenant always knew about the conferment of proprietary rights on the landlord vide mutation 4 No. 52 on 24.8.1982. Ex.P4 was produced in evidence in rent petition No. 9/1983 and the predecessor-in-interest of tenants also submitted documents Ex.P2 wherein also there was reference of the mutation No. 52 decided on 24.8.1982. In these circumstances, the application was an afterthought to delay the proceedings at the stage when the RWs were summoned and the last opportunity was granted. The ground taken by the tenant, seeking amendment of the reply, was also not necessary for determining the real controversy between the landlord and tenants. The tenants have admitted the tenancy. It was for the State to challenge the conferment of proprietary rights, if the same was not in accordance with law. The tenants had no locus standi to challenge mutation No. 52 attested on 24.8.1982 by the Revenue Officer. 8. Their Lordships of the Hon’ble Supreme Court in Revajeetu Builders and Developers versus Narayanaswamy and sons and others, (2009) 10 SCC 84 have laid down the following tests, which govern the discretionary power while granting or refusing the amendment: “58. The first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, 5 the amendment cannot be allowed. This is the basic test which should govern the courts' discretion in grant or refusal of the amendment. 59. The other important condition which should govern the discretion of the Court is the potentiality of prejudice or injustice which is likely to be caused to other side. Ordinarily, if other side is compensated by costs, then there is no injustice but in practice hardly any court grants actual costs to the opposite side. The Courts have very wide discretion in the matter of amendment of pleadings but court's powers must be exercised judiciously and with great care. 61. The Courts have consistently laid down that for unnecessary delay and inconvenience, the opposite party must be compensated with costs. The imposition of costs is an important judicial exercise particularly when the courts deal with the cases of amendment. The costs cannot and should not be imposed arbitrarily. In our view, the following parameters must be taken into consideration while imposing the costs. These factors are illustrative in nature and not exhaustive. (i) At what stage the amendment was sought? (ii) While imposing the costs, it should be taken into consideration whether the amendment has been sought at a pre-trial or post-trial stage; (iii)The financial benefit derived by one party at the cost of other party should be properly calculated in terms of money and the costs be awarded accordingly. (iv) The imposition of costs should not be symbolic but realistic; (v) The delay and inconvenience caused to the opposite side must be clearly evaluated in terms of additional and extra court hearings compelling the opposite party to bear the extra costs. (vi) In case of appeal to higher courts, the victim of amendment is compelled to bear considerable additional costs. All these aspects must be carefully taken into consideration while awarding the costs. 6 63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment. (1) Whether the amendment sought is imperative for proper and effective adjudication of the case? (2) Whether the application for amendment is bona fide or mala fide? (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive. 64. The decision on an application made under Order VI Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments.” 9. Their Lordships have discussed the scope of amendment in Rajkumar Gurawara (Dead) through LRs 7 versus S.K. Sarwagi and Company Private Limited and another, (2008) 14 SCC 364 as under: “12. In order to consider whether the appellant/plaintiff has made out a case for amendment of his plaint, it is useful to refer Order VI Rule 17 CPC which reads as under:- “11. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." The first part of the rule makes it abundantly clear that at any stage of the proceedings, parties are free to alter or amend their pleadings as may be necessary for the purpose of determining the real questions in controversy. However, this rule is subject to proviso appended therein. The said rule with proviso again substituted by Act 22 of 2002 with effect from 01.07.2002 makes it clear that after the commencement of the trial, no application for amendment shall be allowed. However, if the parties to the proceedings able to satisfy the court that in spite of due diligence could not raise the issue before the commencement of trial and the court satisfies their explanation, amendment can be allowed even after commencement of the trial. 13. To put it clear, Order VI Rule 17 C.P.C. confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings on 8 such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre- trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso. 18. Further it is relevant to point out that in the original suit, the plaintiff prayed for declaration of his exclusive right to do mining operations and to use and sell the suit schedule property and in the petition filed during the course of the arguments, he prayed for recovery of possession and damages from the second defendant. It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order VI Rule 17 but even on merits his claim is liable to be rejected. All these relevant aspects have been duly considered by the High Court and rightly set aside the order dated 10.3.2004 of the Additional District Judge.” 9 10. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the petition and the same is dismissed. No costs. (Rajiv Sharma), Judge 6.1. 2011. *awasthi*