IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.11248 of 2011 Lal Chandra Agrawal Versus Sri Rajkishore & Anr ---------------------------------- O R D E R 05. 04.11.2011. 1. Heard the learned senior counsel, Mr. S.S. Dwivedi on behalf of the petitioner and Mr. J.S. Arora appearing on behalf of the respondent. 2. The defendant-petitioner have filed this application under Article 227 of the Constitution of India praying for setting aside the order dated 25.05.2011 passed by Munsif IIIrd Patna in eviction suit No.51 of 2002 whereby the learned Munsif rejected the petition dated 23.05.2011 filed by the defendant-petitioner under Order 6 Rule 17 C.P.C. for amendment of the written statement. 3. The plaintiff’s case in short is that the plaintiff filed the aforesaid eviction suit on the ground of bonafide personal necessity for his son Jitendra Kumar Gupta who is unemployed and the suit premises is suitable for the business purpose. Written statement was filed by the defendant alleging that there is no personal necessity and the plaintiffs filed the suit only to pressurize the defendant to increase rent from Rs.1,000/- to Rs.15,000/- per month. 4. The defendants filed the amendment application alleging that during the pendency of the present suit for eviction, many shops premises of the plaintiff were vacated - 2 - by other tenants and the plaintiffs let out to other tenant after receiving huge pagri on higher rate of rent. An example was given that Kanhaiya Readymade Garment facing main road was vacated in the year 2004 which was let out to one Ram Babu on the higher rate of rent after taking Rs.2 lakhs as pagri. However, by the impugned order, the learned Court below rejected the said application. 5. The learned senior counsel, Mr. S.S. Dwivedi submitted that the statement of fact which was sought to be introduced by amendment is based on subsequent event to the institution of the suit. When the defendant came to know about the induction of other tenant by the plaintiff taking huge pagri the amendment application was filed and in the said amendment application, it has specifically been stated that many other shop premises were vacated giving one instance of Kanhaiya Garment but the learned Court below rejected the application thereby failed to exercise the jurisdiction vested in it by law. 6. The learned counsel relied upon A.I.R. 2002 Supreme Court 665 and submitted that the Court is required to take into consideration the subsequent event and permit the parties to amend the pleading as it would be necessary to do so for the purpose of determining real questions in controversy between the parties but the learned Court below illegally rejected the said application. - 3 - 7. On the other hand, the learned counsel, Mr. J.S. Arora submitted that after introduction of Proviso to Order 6 Rule 17 C.P.C., the Court has no jurisdiction to allow amendment in the written statement. In the present case, the evidence of the parties have been closed and the case was posted for argument and at this stage only with a view to delay the disposal of suit, the amendment application has been filed. In the evidence, the defendant clearly stated that one shop, namely, Kanhaiya Readymade Garment was vacated during the pendency of the suit and was let out to Vidya Bhawani Stationary shop of Ram Babu in the year 2005. Therefore, the defendant was knowing the fact from before but no application for amendment was filed earlier. Only during the course of argument, this application for amendment has been filed and, therefore, in view of Proviso to Order 6 Rule 17, the learned Court below has rightly rejected the said prayer for amendment. 8. From perusal of the amendment application and the impugned order, it appears that the defendant alleged that during the pendency of the suit, many shop premises of the plaintiff were vacated and he after taking huge pagri inducted tenants on higher rate of rent. One instance has been given as stated above. Therefore, it appears that the amendment was sought for alleging the fact of subsequent event to the institution of the suit. 9. In A.I.R. 2002 Supreme Court 665 =2002 - 4 - (2) Supreme Court cases 256 (Om Prakash Gupta Vs. Ranbir B. Goyal at paragraph 12, the Apex Court has held as follows : “12. Such subsequent event may be one purely of law or founded on facts. In the former case, the Court may take judicial notice of the event and before acting thereon put the parties on notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the relief so as to bring it in conformity with the law. In the latter case, the party relying on the subsequent event, which consists of facts not beyond pale of controversy either as to their existence or in their impact, is expected to have resort to amendment of pleadings under Order 6 Rule 17 CPC. Such subsequent event, the Court may permit being introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining real questions in controversy between the parties. In Trojan & Co. v. RM. N.N. Nagappa Chettiar this Court has held that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found; without the amendment of the pleadings the Court would not be entitled to modify or alter the relief. In Sri Mahant Govind Rao v. Sita Ram Kesho Their Lordships observed that, as a rule, relief not founded on the pleadings should not be granted.” 10. In 2008 (14) Supreme Court cases 364 RajKumar Gurawara (Dead) through LRS. Vs. S.K. Sarwagi and Company Private Ltd. And Anr., the Apex Court at paragraph 12 has held as follows : “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 6 Rule 17 CPC which reads as under : “17. 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 - 5 - trial.” The first part of the rule makes it abundantly clear that at any stage of the proceedings, parties are free to altar 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 1-7-2002 makes it clear that after the commencement of the trial, no application for amendment shall be allowed. However, if the parties to the proceedings are able to satisfy the Court that in spite of due diligence they could not raise the issue before the commencement of trial and the Court is satisfied with their explanation, amendment can be allowed even after commencement of the trial. 11. Now, therefore, in view of the decision of the Apex Court even after commencement of trial, if the Court is satisfied with the explanation, amendment can be allowed. Therefore, there is no absolute bar for rejection of the amendment but it is dependent on the facts of each case. While allowing of amendment of pre-trial stage is a general rule, the allowing of the same after commencement of trial is subjected to Proviso added in Order 6 Rule 17 with the 1st July, 2002. Therefore, it is for the Court to satisfy itself as to whether in spite of the diligence, the party could not have raised the matter before the commencement of trial. In such view of the matter, there cannot be any exhaustive formulae regarding use of the Proviso. It depends on facts of each case and the Court has to consider the same judiciously. Here, in the case at our hand according to the allegation made in the amendment application, it is subsequent event. In view of the Apex Court referred to above, the Court should take into consideration the subsequent event. 12. In A.I.R. 2005 Supreme Court 996 (Adil - 6 - Jamshed Frenchman (D) by legal representatives Vs. Sardar Dastur School Trust & Ors.), the Apex Court at paragraph 8 and 9 has held as follows : “8. The decree of the trial Court is based on the landlord’s bona fide requirement of the accommodation. In appeal, the question before the Court for adjudication is whether the trial Court was justified in passing the decree in favour of the landlords on the ground of bona fide need and the tenants obviously are within their rights to show that the need of the landlords is not genuine. The evidence produced in that direction would be relevant for the purpose of adjudicating the question of need of landlords. In Shiv Sarup Gupta v. DR. Mahesh Chand Gupta (1999) 6 SCC 222, this Court has held that a bona fide requirement must be an outcome of a sincere and honest desire in contradistinction with a mere pretext for evicting the tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family which would entitle the landlord to seek ejectment of the tenant. The question to be asked by a Judge of facts by placing himself in the place of the landlord is whether in the given facts proved by the material on record the need to occupy the premises can be said to be natural, real, sincere and honest. The concept of bonafide need or genuine requirement needs a practical approach instructed by the realities of life. In Deena Nath v. Pooran Lal, (2001) 5 SCC 705, this Court reiterated that bona fide requirement has to be distinguished from a mere whim or fanciful desire. The bona fide requirement is in presenti and must be manifested in actual need so as to convince the Court that it is not a mere fanciful or whimsical desire. 9. It cannot be denied that the documents sought to be produced by the tenants are material and if substantiated, would have a material effect on the case of the landlords of their bona fide need of the suit premises. If, in fact, the landlord has entered into negotiations with M/s. Godrej Boyee Co. Ltd for selling or use by them of the property, the need cannot be said to be genuine. Similarly, a change in the construction plan may show that the alleged need of the landlord for the construction may not be genuine. The entire document proposes to demolish the case of availability of the funds for construction with the landlord. Two of the documents came into existence after the passing of the decree by the trial Court. Similarly, the correspondence entered into by the landlord with a third party could not have been within the knowledge of the tenant and therefore, the tenants’ statement that the documents could not have been - 7 - produced before the trial Court, in spite of the exercise of due diligence, was highly probable. In such circumstances, the High Court was not justified in interfering with the discretion exercised by the first appellate Court permitting additional evidence.” 13. From perusal of the decision of the Apex Court in the case of Adil Janshen Frenchmen (Supra), it appears that it was also an eviction suit on the ground of bonafide personal necessity. After decree, some subsequent event took place and then defendant sought permission to adduce additional evidence based on subsequent event. In such circumstances, the Apex Court held as quoted above. Here also, according to the defendant subsequently many shop premises were vacated which was let out by the plaintiff to other tenants. Therefore, the amendment sought for by the tenant appears to be material and if it is true then it would have a material effect on the case of the landlords of their bonafide need of the suit premises. If this is the position at the appellate stage then why the tenant be not allowed to raise this question prior to passing of the decree if the fact alleged by the defendant happened subsequent to the institution of the suit. 14. The submission of the learned counsel that it will delay the matter is concerned, in my opinion, only on the ground of delay, the amendment should not be refused if it is bonafide legitimate, honest and necessary for the determination of real question in controversy between he parties. - 8 - 15. In (2009) 10 SCC 84 Revajeetu Builders and Developers Vs. Narayanaswami and sons and others the Apex Court has held that the courts have very wide discretion in the matter of amendment of pleadings but courts’ powers must be exercised judiciously and with great care. 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. 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, the amendment cannot be allowed. This is the basic test which should govern the courts’ discretion in grant or refusal of the amendment. 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 the other side. Ordinarily, if the other side is compensated by costs, then there is no injustice but in practice hardly any court grants actual costs to the opposite side. In the said decision at paragraph 63 the Apex Court has enumerated some guidelines which is quoted hereinbelow : “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; - 9 - (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 claims would be barred by limitation on the date of application.” 16. In view of the above settled principle of law the discretion is left upon on the Court and the Court is required to decide considering the facts and circumstances of each case. In the present case as has been stated, the defendant sought amendment regarding the subsequent event which has vital bearing in the case of the parties. Therefore, the learned Court below should not have refused the same only on the ground of delay. 17. Accordingly, this writ application is allowed and the impugned order is set aside. The amendment application filed by the defendant-petitioner for amendment of the written statement is allowed subject to payment of cost of Rs.5000/- within one month from the date of receipt of a copy of this order in the Court below. The petitioner shall carry on the amendment in the written statement within the period prescribed under the C.P.C. from the date of receipt of a copy of this order. Patna High Court, Patna The 4thday of November, 2011 Sanjeev/A.F.R. (Mungeshwar Sahoo,J.)