IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Civil Revision No. 35 of 2009 Km. Manju Chaurasia D/o Col. K.P. Chaurasia ..……… Revisionist Versus Rajiv Khanna S/o Shri Prithiviraj Khanna ……… Respondent Mr. Bhupesh Kandpal, Advocate for the revisionist. Mr. Neeraj Garg, Advocate for the respondent. Hon’ble Tarun Agarwala, J. Heard Shri Bhupesh Kandpal, the learned counsel for the revisionist and Shri Neeraj Garg, the learned counsel for the respondent. The applicant is the landlord who has filed a suit for eviction of the opposite party under the Provincial Small Cause Courts Act. During the pendency of the proceeding, an application under Order 6 Rule 17 of the C.P.C. was filed to amend the plaint. It was contended that an error had crept in the plaint with regard to the municipal number of the property in dispute and that an additional fact came to the knowledge of the plaintiff, namely, that the defendant had filed a suit u/S 229-B of the U.P. Zamindari Abolition and Land Reforms Act claiming himself to be the owner of the property instead of being a tenant. Consequently, the plaintiff prayed for the deletion of paragraph 1 and 2 of the plaint and substituting it by a fresh paragraph. The plaintiff also prayed for the addition of paragraph 5A and for the deletion of the schedule of the property at the end of the plaint by substituting it with a fresh schedule of the property. For ready reference, the amendment sought by the plaintiff is quoted hereunder:- “ 1. That existing para 1 and 2 of the plain be deleted and substituted by the following paragraphs. 2 1. That the plaintiff is the landlord of the property fully detailed and described in the schedule given at the foot of this plaint (hereinafter referred to as the said property). 2. That the defendant had been the tenant of the said property on behalf of the plaintiff w.e.f. 1-2- 2005.” 2. That a new para “5A” be added in the plaint after the existing para ‘5’. “5A. That the plaintiff is unmarried and lives in Gurgaon. The plaintiff along with Sri Paramjit Singh had purchased land subject matter of the property in suit by means of two registered sale deeds. Subsequently the plaintiff and Paramjit Singh had got development plans sanctioned from M.D.D.A. and had raised constructions. Under some misconception the plaintiff referred to the property in suit as 11/2 B Old Mussoorie Road, Dehradun. In fact the municipal number is 17/1/B Old Mussoorie Road, Rajpur, Dehradun. This entire property is comprised in khasra Nos. 42M, 45M [which both are Z.A. numbers] and 40M [which is Non-ZA number] of village Dhakpatti Dehradun. On filing of paper no. 44C it transpired that the defendant has filed a suit u/s 229B of U.P.Z.A. & L.R. Act against the plaintiff and others being Suit No.108/06-07 Sri Rajiv Khanna Vs. Miss. Manju Chaurasia and others in the court of the Assistant Collector First Class Dehradun. In the said suit the defendant has renounced his character as tenant of the said property and has claimed title of the said property in himself. The defendant has thus rendered himself liable for eviction on this ground also.” 3. That after the relief ‘Ga’ in the plaint the following schedule be added:- “Schedule of the Property Property bearing No.17/1/B Old Mussoorie Road, Rajpur Dehradun comprised in Khasra No.40M, 42M and 45M of village Dhakpatti Pargana Pachwa Doon, Dehradun comprising of two bed-rooms, one drawing room, one kitchen, two bath-rooms, veranda, garden and one servant quarters bounded and butted as under:- North: Passage in part and land of Sri Y.S. Rana & R.S. Rana in part. South: Property of Sri R.D. Saxena 3 East: Land of Sri Y.S. Rana and R.S. Rana West: Property of Mr. Verma in part and Mr. P.K. Ghosh in part”. 4. That schedule of property after the verification clause of the plaint be deleted.” The said application was opposed by the defendant. The trial court, after considering the matter, passed an order dated 16/12/2009 rejecting the application for amendment on the ground that there had been a considerable delay in moving the amendment application and, that the amendment was barred by the proviso to Order 6 Rule 17 of the C.P.C. and, that the applicant had not been able to explain as to why the said amendment could not be moved earlier. The plaintiff, being aggrieved by the rejection of the application, has filed the present revision. The learned counsel for the applicant contended that since additional information had come to the knowledge of the plaintiff, namely, with regard to the status of the defendant and the suit which he had filed for declaration u/S 229-B, it became necessary to bring the subsequent fact on the record. The learned counsel for the revisionist submitted that the amendment in other paragraphs were only clerical in nature in order to elucidate the facts and since there was an error in the municipal number of the premises in question, the same was being rectified and, that in paragraph 1 of the plaint, the amendment sought was only to clarify that the plaintiff was the landlord instead of being the owner of the premises in question. On the other hand, the learned counsel for the defendant submitted that the amendment sought was only to delay the proceedings and, that no cause was shown as to why the said amendment could not have been moved earlier. The learned counsel submitted that the written statement was filed on 9th April, 2007 and the error pointed out by the plaintiff in the plaint could have been noticed at that stage itself and that there was no 4 explanation as to why the amendment was filed after more than two years. The learned counsel, consequently, submitted that the proviso to Order 6 Rule 17 of the C.P.C. would come into play and since the plaintiff has not shown due diligence, the amendment application could not be allowed. The learned counsel submitted that there was no error in the order of the Court below and, consequently, this court should not interfere in the revisional jurisdiction. Having heard the learned counsel for the parties at some length, the Court finds that the amendment sought to be brought on record, does not change the nature of the suit. Admittedly, there was a discrepancy in the municipal number and, consequently, paragraph 1 of the plaint which was sought to be deleted indicated the municipal number. Similarly, the schedule of the property at the end of the plaint was sought to be deleted and substituted by a fresh schedule of property which indicated the change in the municipal number. The schedule of the property remains the same and the plaintiff has also disclosed the khasra numbers as well as the description of the property by metes and bounds. Such description in the schedule of the property, in my opinion, does not change the nature of the property or the nature of the suit and, at best, such amendment is only clerical in nature. The amendment only elucidates with clarity and with precision the schedule of the property in question. Similarly, the court finds that deletion of paragraph 1 and 2 and substitution thereof by a fresh paragraph 1 and 2 does not change the nature of the suit. It only clarifies that the plaintiff is the landlord and that the defendant is the tenant in the property in question. Similarly, paragraph 5A has been added which the petitioner came to know recently after the filing of the suit. Upon the averments made in the application for amendment of the plaint, the Court is of the opinion that such amendment does 5 not change the nature of the suit nor does it cause any prejudice to the defendant. There has been a slight delay in the filing of the amendment application but the same is not beyond limitation. The amendment application could be filed at any stage. There is no bar that if the landlord withdraws the suit and files afresh, the same would be barred by the principle of resjudicata. Consequently, the amendment which was brought on record, being clerical in nature and, the amendment only elucidates and brings out a clear description of the property, the Court is of the opinion that the amendment should be allowed. The Code of Civil Procedure is handmaid of justice and the purpose is that substantial justice should be done between the parties. The provisions of the C.P.C. should not be used as a tool to reject an application on a technicality. Some times, due diligence could not be explained with clarity or with precision. That does not mean that the application should be rejected only on that ground. If the Court finds that the application is bonafide, the same should be allowed after compensating the contesting party. The Court finds that the suit is for the eviction of the defendant and the delay, if any, is to the advantage of the defendant and not to the plaintiff. In the opinion of the Court, the amendment sought, which does not prejudice the defendant nor changes the nature of the suit, should have been allowed on payment of cost. Consequently, the impugned order cannot be sustained and is quashed. The revision is allowed. The application under Order 6 Rule 17 of the C.P.C. is also allowed on payment of cost which the court quantifies at Rs.5,000/- which the plaintiff will deposit before the trial court by means of a cross demand draft in favour of the defendant within two weeks from today. The amount so deposited can be withdrawn by the defendant. Dated 20.08.2010 Shiv (Tarun Agarwala, J.)