THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.3818 of 2009 Date:16th February, 2010 Between: M/s.Jai Bharat Plywood & Hardware rep. by its Prop: Sri Rajesh Mantri ….Petitioner and Sri Vinod .…Respondent *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.3818 of 2009 ORDER: This Civil Revision Petition is directed against the order dated 15.07.2009 passed in I.A.No.26 of 2009 in O.S.No.1054 of 2007 [O.S.No.1302 of 2006 (old)] on the file of IV Additional Rent Controller- cum-XVI Junior Civil Judge, Hyderabad, whereby and whereunder the learned Junior Civil Judge dismissed the application filed by the petitioner/defendant under Order 6, Rule 17 CPC. 2. Background facts in a nutshell leading to filing of this revision by the petitioner/defendant in O.S.No.1054 of 2007 [O.S.No.1302 of 2006 (old)] on the file of IV Additional Rent Controller-cum-XVI Junior Civil Judge, at Hyderabad, are: The respondent is the plaintiff and the petitioner is the defendant in O.S.No.1054 of 2007 [O.S.No.1302 of 2006 (old)]. G.Satyanarayana, the father of the plaintiff, owned a house bearing No.8-3-231/A/84/1, 2A, 2B, 2C, 3 and 4 etc. situated at Sri Krishna Nagar, Yousufguda, Hyderabad. The petitioner took the premises bearing No.8-3-231/A/84/3 in the year 1998. An year thereafter, he also took the premises bearing No.8-3-231/A/84/4. The two shops are adjacent to each other. The monthly rent for both the shops in the year 2005 was Rs.4,880/- (Rs.2,440/- per shop). The said Satyanarayana entered into an agreement with the petitioner in respect of sale of the premises bearing No.8-3-231/A/84/3 in the month of September, 2005. The petitioner paid an advance of Rs.51,000/- through cheque bearing No.842350 drawn on the State Bank of Saurashtra, Nampally Branch, Hyderabad. The said Satyanarayana executed a gift settlement deed in favour of his son, who is the respondent herein, on 18.10.2005. Thereupon the petitioner issued a notice dated 28.12.2005 demanding Satyanarayana to execute a registered sale deed pursuant to the oral agreement of sale. Satyanarayana issued a reply notice dated 12.01.2006 admitting the agreement of sale and directing him to pay the balance sale consideration and obtain registered sale deed in respect of the shop No.8-3-231/A/84/3 and vacate the adjacent shop bearing No.8-3- 231/A/84/4. For better appreciation, I may refer para.7 of the reply notice, which reads as hereunder: “As such, please advise your client to pay the balance sale consideration of Rs.22,00,000/- and get the sale deed executed and registered in his favour in terms of the receipt dated 05.10.2005, and vacate the adjacent shop WITHIN A WEEK from the date of receipt of this REPLY instead of precipitating the matter further and we hope your good advise may prevail upon your client. In spite of the present reply if your client chooses to precipitate the matters further he fails to get the sale deed executed and registered by paying the balance sale consideration and to vacate the adjacent shop, the alleged proposal for sale shall automatically stands cancelled and the advance amount of Rs.51,000/- paid by your client stands forfeited and your client shall not have any claim of whatsoever nature either against my client or in respect of the shop on the basis of the acknowledgement referred to by your client in the notice under reply.” The respondent issued a notice to the petitioner on 01.02.2006 directing him to vacate the premises and handover the possession of the shop in his occupation. To complete the narration of facts, two more proceedings initiated by the petitioner need to be noted. He filed O.S.No.7482 of 2005 on the file of IV Junior Civil Judge, City Civil Court, Hyderabad, against the respondent and his father seeking perpetual injunction and obtained an ad interim injunction. He also filed O.S.No.104 of 2006 for specific performance of agreement of sale in respect of the premises bearing No.8-3-231/A/84/3 and the same is pending on the file of III Additional Chief Judge, City Civil Courts, Hyderabad. Whereas, the respondent filed O.S.No.1302 of 2006 on the file of IV Junior Civil Judge, City Civil Courts, Hyderabad, against the petitioner for eviction and recovery of possession apart from recovery of arrears of rent. The petitioner/defendant filed written statement resisting the claim of the respondent/plaintiff. The petitioner/defendant did not dispute the jurisdiction of the Court to entertain the suit. Paras.6 to 11 of the written statement need to be noted and they are thus: “6. With reference to the allegations made in para.4 of the plaint, this defendant admits that the tenancy is month to month according to English Calendar Year and that the rent is Rs.4,880/- p.m. exclusive of electricity consumption charges. 7. With reference to the allegations made in para.5 of the plaint, this defendant denies that the plaintiff’s family is need of shop. The premises is not governed by provisions of the A.P. Buildings (L. R. & E.) Control Act. Termination of tenancy is not valid. Possession of the defendant is not illegal or unauthorized. This defendant is entitled to occupy the property. The claim of the plaintiff for damages at Rs.20,000/- per month is without any basis. 8. This defendant denies that it has been irregular in payment of rent and that there are any arrears of rent. 9. Regarding the allegations made in para.7 of the plaint, this defendant submits that a suitable reply has been issued to the notice, setting out the facts. 10. This defendant denies that there is any cause of action and that it arose on any of the dates and for any of the reasons set out in para.8 of the plaint. 11. Jurisdiction of this Hon’ble court is not disputed.” The trial Court settled the issues basing on the pleadings of the parties. The plaintiff commenced the trial and closed his evidence. While the case was coming up for adducing evidence on behalf of the petitioner-defendant, he filed I.A.No.26 of 2009 under Order 6, Rule 17 CPC read with Rule 28 of the Civil Rules of Practice seeking amendment of the written statement. The amendment sought for is two folded. Firstly, by deletion of words ‘not’ appearing in para.7 of the written statement, and Secondly, by adding ‘para.7-A’ to the written statement after para.7. The respondent/plaintiff filed counter resisting the application. The learned Junior Civil Judge, on considering the evidence brought on record and on hearing the counsel appearing for the parties, proceeded to dismiss the application filed by the petitioner/defendant, by order dated 15.07.2009. The relevant portion of the impugned order reads as hereunder: “It is apparent, on the face of the record that the petitioner has knowledge about the averments which he wants to add by way of amendment on the date of filing of the written statement. A perusal of Order 6, Rule 17 shows that the court may allow amendment of pleadings at any stage of proceedings if it is of the view that such amendment is necessary for determining real question in controversy between parties. The proviso to Order 6, Rule 17 of the Code, however, provides that no application for amendment shall be allowed after the trial has commenced unless the court comes to a conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trial. In view of the above, the petitioner is not entitled to the relief as prayed for.” Hence, this Civil Revision Petition by the petitioner/defendant. 3. Heard learned counsel appearing for the petitioner/defendant and learned counsel appearing for the respondent/plaintiff. 4. Learned counsel appearing for the petitioner/defendant submits that the petitioner/defendant inadvertently stated in para.7 of the written statement that the premises is not governed by the provisions of the A.P. Buildings (Lease, Rent and Eviction) Control Act and the said inadvertent mistake is sought to be corrected by deleting the word ‘not’ in para.7 of the written statement. He would also submit that the amendment sought for is essential for adjudication of the real controversy between the parties. The proposed amendment is only an elaboration of the plea already taken by the defendant in the written statement. Even otherwise, according to the learned counsel, the defendant can take various alternative defences by way of amendment to the written statement and no prejudice is likely to be caused to the respondent/plaintiff by permitting the petitioner/defendant to amend the written statement as prayed for. The learned counsel refers notices exchanged between the parties to convince that tenancy of the two shops is independent and as the rent stipulated for each shop is Rs.2,440/-, each of the shops comes within the purview of the provisions of the A.P. Buildings (Lease, Rent and Eviction) Control Act and in which case, the civil suit filed by the respondent/plaintiff seeking eviction is liable to be dismissed at the threshold. In support of his submissions, reliance has been placed on the decisions of the Supreme Court in Rafiq v. Munshilal[1]; Baldev Singh v. Manohar Singh[2]; and Usha Balashaheb Swami v. Kiran Appaso Swami[3]. 5. In Rafiq v. Munshilal’s case (1 supra), the Supreme Court held that an innocent party, who has done everything in his power and expected of him, should not suffer for the inaction, deliberate omission or misdemeanour of his counsel. 6. I n Baldev Singh v. Manohar Singh’s case (2 supra), the Supreme Court held that Court should be extremely liberal in granting prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side. It is further held that the commencement of the trial must be understood in limited sense as meaning final hearing of suit, examination of witnesses, filing of documents and addressing of arguments and that the defendants can raise inconsistent pleas in the written statement although same may not be permissible in case of plaint. In the cited case, the Supreme Court, on considering the facts and circumstances of the case therein, came to the conclusion that proviso to Order 6, Rule 17 CPC cannot be pressed into service, since the trial has not yet commenced and that certain admissions made in the written statement were sought to be explained by way of amendment of the written statement. Para.14 of the cited judgment needs to be noted and it is thus: “14. As noted herein earlier, the case set up by the plaintiff/respondent No.1 was that his parents had no money to purchase the suit property and it was the plaintiff/respondent No.1 who paid the consideration money. In the written statement, this fact was denied and further it was asserted in the written statement that the suit property was in fact purchased by their parents and they had sufficient income of their own. In the application for amendment of written statement it was stated that the plaintiff/respondent No.1 did not have any income to pay the consideration money of the suit property and in fact the parents of the plaintiff/respondent No.1 had sufficient income to pay the sale price. It was only pointed out in the application for amendment that after the death of their parents, the suit property was mutated in the joint names of the plaintiff/respondent No.1 and the defendant in equal shares. Therefore, the question whether certain admissions made in the written statement were sought to be withdrawn is concerned, we find, as noted herein earlier, there was no admission in the written statement from which it could be said that by filing an application for amendment of the written statement, the appellants had sought to withdraw such admission. It is true in the original written statement, a statement has been made that it is the defendant No.1/appellant No.1 is the owner and in continuous possession of the suit property but in our view, the powers of the Court are wide enough to permit amendment of the written statement by incorporating an alternative plea of ownership in the application for amendment of the written statement. That apart, in our view, the facts stated in the application for amendment were in fact an elaboration of the defence case. Accordingly, we are of the view that the High Court as well as the Trial Court had erred in rejecting the application for amendment of the written statement on the ground that in the event such amendment was allowed, it would take away some admissions made by the defendants/appellants in their written statement. That apart, in the case of Estralla Rubber v. Dass Estate (P) Ltd. ((2001) 8 SCC 97), this Court held that even there was some admission in the evidence as well as in the written statement, it was still open to the parties to explain the same by way of filing an application for amendment of the written statement. That apart, mere delay of three years in filing the application for amendment of the written statement could not be a ground for rejection of the same when no serious prejudice is shown to have been caused to the plaintiff/respondent No.1 so as to take away any accrued right.” 7. In Usha Balashaheb Swami v. Kiran Appaso Swami’s case (3 supra), the Supreme Court held that amendment by adding proviso or condition to the admission made in original written statement does not amount to withdrawal of admission and such an amendment is permissible under Order 6, Rule 17 CPC. It is further held that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of the claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding altering or substituting a new cause of action in the plaint may be objectionable. In the case of amendment of a written statement, the Courts are more liberal in allowing an amendment than that of a plaint, as the question of prejudice would be far less in the former than in the latter case. In the cited case, the Supreme Court after examination of the material brought on record came to the conclusion that trial has not yet commenced by the time the defendant made an application under Order 6, Rule 17 CPC seeking amendment of the written statement. 8. Learned counsel appearing for the respondent/plaintiff submits that the petitioner/defendant specifically admitted in paras.7 and 11 of the written statement that the suit premises is not governed by the provisions of the A.P. Buildings (Lease, Rent and Eviction) Control Act and he does not dispute the jurisdiction of the Court to entertain the suit and therefore, the petitioner/defendant cannot be permitted to withdraw the admissions made by him by way of amendment to the written statement. 9. The issue that calls for adjudication is, whether the petitioner/defendant can be permitted to amend the written statement by withdrawing the admissions made by him in paras.7 and 11 of the written statement? 10. Learned counsel appearing for the petitioner/defendant by referring the proposed amendment submits that the proposed amendment is only an elaboration of the pleas taken by the defendant in the written statement. 11. I have perused the written statement and also proposed amendment to the written statement. In the written statement, the petitioner/defendant specifically pleaded in paras.7 and 11 that the premises is not governed by the provisions of the A.P. Buildings (Lease, Rent and Eviction) Control Act and that he does not dispute the jurisdiction of the Court to entertain the suit. Such is the admission made by the petitioner/defendant in the written statement, he cannot be permitted to withdraw the said admission by way of amendment. In view of the admissions made by the petitioner/defendant in the written statement, no issue was framed by the trial Court with regard to maintainability of the suit. There being no issue with regard to maintainability of the suit, the proposed amendment is no way helpful to resolve the real controversy between the parties. As I stated earlier, evidence has been commenced and the respondent/plaintiff closed his evidence and the case was coming up for evidence on behalf of the petitioner/defendant by the time the petitioner/defendant moved the application under Order 6, Rule 17 CPC seeking amendment of the written statement. In the cited decisions (2 and 3 supra), the Supreme Court, considering the facts and circumstances therein, came to the conclusion that the proposed amendment does not amount to withdrawal of the admission and that the application moved by the defendant was before commencement of the trial. Therefore, the cited decisions are not of much help to the petitioner/defendant. Once the proposed amendment is allowed, it amounts to permitting the petitioner/defendant to withdraw the admissions made by him in paras.7 and 11 of the written statement. If the amendment sought for is allowed, great prejudice would be caused to the respondent/plaintiff in advancing his case. In view of the above discussion, I find that the amendment of the written statement sought for by the petitioner/defendant cannot be permitted. 12. Accordingly, the Civil Revision Petition fails and it is hereby dismissed. No costs. ______________________ B.SESHASAYANA REDDY, J. Dated:16th February, 2010. Note: 1. L.R. copy to be marked. 2. Issue C.C. within three days. B/O cs THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.3818 of 2009 Date:16th February, 2010 * THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY + Civil Revision Petition No.3818 of 2009 % 16-02-2010 # M/s.Jai Bharat Plywood & Hardware rep. by its Prop:Sri Rajesh Mantri ….Petitioner Vs. Sri Vinod .…Respondent ! COUNSEL FOR PETITIONER: MR.VINAY SHEKAR GUNNALA MR. R.CHANDRASEKHAR REDDY ^COUNSEL FOR RESPONDENT : MR. E.MADAN MOHAN RAO < Gist: > Head Note: ? CITATIONS: 1) AIR 1981 S.C. 1400 2) 2006(6) SCJ 305 3) AIR 2007 S.C. 1663 [1] AIR 1981 S.C. 1400 [2] 2006 (6) SCJ 305 [3] AIR 2007 S.C. 1663