HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1070/2009 (M/S) Purushottam Modi. …Petitioner Versus Smt. Mohni Devi. …Respondent Shri Rajendra Dobhal, Senior Advocate assisted by G.D. Joshi, Advocate for the petitioner, Shri B.S. Adhikari, Advocate for respondent. Dated: March 9, 2010 Hon’ble V.K. Bist, J. This writ petition has been filed seeking a writ in the nature of mandamus commanding the Prescribed Authority/Civil Judge (Sr. Div.), Pithoragarh to permit the amendment sought under Order-6 Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘C.P.C.’) and further to allow the application under Order 26 Rule 9 C.P.C. seeking spot inspection of the accommodation in dispute. 2. The respondent/landlord moved an application under Section 21 of the U.P. Urban Building (Regulation of Letting Rent and Eviction) Act, 1972 for eviction of the petitioner/tenant from the accommodation in dispute on the ground of bonafide need of her son who wanted to start private practice as doctor in the accommodation in dispute. During pendency of the case the petitioner/ tenant moved an application under Order 6 Rule 17 of C.P.C. seeking amendment of the plaint on the ground that during the pendency of the case the respondent/ landlord has got possession over other property and now the respondent/landlord is not in need of the accommodation in dispute. The petitioner/tenant also moved an application on 02.05.2008 under Order 26 of Rule 9 of C.P.C. for making inspection of the accommodation in dispute through Advocate Commissioner and to place the exact position of the 2 accommodation in dispute before the Court. In the said application it was mentioned that from 01.05.2008 water, soil and stones were being thrown in his shop from the upper floor of the building due to which articles like Television, Computer, Fridge etc. were being damaged. The respondent/landlord filed objection to both these applications. The Trial Court after hearing the learned counsel for the parties passed order on 15.05.2008 dismissing both the applications moved on behalf of the petitioner/tenant. Being aggrieved by the order of the Trial Court, the petitioner/tenant filed a Civil Revision No.08 of 2008 before the District Judge, Pithoragarh and the District Judge, Pithoragarh passed order on 28.05.2009 dismissing the revision filed by the petitioner/tenant. Aggrieved by both these orders, the petitioner has came up before this Court by filing instant writ petition. 3. Heard Shri Rajendra Dobhal, Senior Advocate assisted by Shri G.D. Joshi, the learned counsel for the petitioner and Shri B.S. Adhikari, the learned counsel for the respondent and perused the record. 4. Perusal of the record show that both the Courts below rejected the amendment application of the petitioner/tenant on the ground that nature of the suit will be changed by allowing the amendment application the. But by careful examination of the amendment application and other material available on record this Court is of the view that nature of the suit depends on the contents made in the suit, hence by merely allowing the amendment application, the nature of the suit will not be changed. Therefore, the order dated 15.05.2008 passed by the Prescribed Authority/Civil Judge (Sr. Div.), Pithoragarh and the order dated 28.05.2009 passed by 3 the Revisional Court, rejecting the amendment application, are liable to be quashed. 5. So far as the application moved under Order 26 Rule-9 C.P.C. seeking spot inspection through Advocate Commissioner is concerned, I find that no fruitful purpose will be solved by allowing the application because the application for inspection was moved in the year 2008 for the appointment of an Advocate Commissioner for making spot inspection to verify as to whether water, soil, stones etc. were being thrown on the shop in question or not and now two years have passed. The Courts below have rightly rejected the application moved under Order 26 Rule-9 C.P.C. 6. Consequently, the writ petition is partly allowed. The amendment application moved by the petitioner/ tenant under Order 6 Rule 17 of the C.P.C. is hereby allowed and to this extent the impugned orders dated 15.05.2008 and 28.05.2009, passed by the Prescribed Authority/Civil Judge (Sr. Div.), Pithoragarh and District Judge, Pithoragarh respectively, are set-aside. The petitioner/tenant shall taken necessary steps for making needful amendment within three weeks from today. Application seeking spot inspection through Advocate Commissioner is rejected. Orders of Courts below rejecting application under Order 26 Rule 9 C.P.C. is affirmed. 7. In the facts and circumstances of the case, the parties shall bear their own costs. (V.K. Bist, J.) 09.03.2010 NCM: