IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CR No.:403/2002 Reserved on: 15.7.2008 Decided on: 16.7.2008 Kuldeep Sharma. …Petitioner. Versus J.L. Sood and another. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioner : Ms. Seema Kaushal, Advocate. For the respondents : None. Rajiv Sharma, J. The present Civil Revision has been preferred against the order dated 25.9.2002 passed by the learned Rent Controller (1), Shimla in the Rent Case No. 57-2/2002. The brief facts necessary for the disposal of this petition are that the respondents (hereinafter referred to as ‘the landlords’ for convenience sake) filed application under section 14 (3) (c) of the Himachal Pradesh Urban Rent Control Act, 1987 before the learned Rent Controller, Shimla. The ground on which the eviction was sought was that the landlords bonafidely require the premises for the purpose of building or re-building 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 the same by dismantling the entire three storeyed building, which was very old and has out lived its life. The petitioner (hereinafter referred to as ‘the tenant’ for convenience sake) filed reply to the applicant. The tenant filed application under order 6 rule 17 read with section 151 of the Code of Civil Procedure seeking amendment of the reply to the following effects:- a) After para-3 of preliminary objections para-4 in preliminary objections of the reply may kindly be added as follows: “4. That the petition is not maintainable in view of the fact that the area in which the property in question situates falls under Chapter 10.6 of Interim Development Plan for Shimla Planning area whereby it has been specifically mentioned that the High Sinking Prone area includes north slope of Ridge extended upto Grand Hotel in west and covering Lakkar Bazar including Central School extending Auckland Nursary School and extending down below upto Dhobighat below the Idgah Electrical Sub Station. It is pertinent to mention here that the property in question situates in Lakkar Bazar and hence falls under the category of High Sinking Prone area, hence the construction as intended by the petitioner/landlord can not be carried out as vide Notification No.: TCP-F(5)-10/2001 dated 22.8.2002 the permission is granted only for single storey construction in a light weight material (excluding RCC and stone masonry) in High Sinking Prone area or Sinking area shall be permissible subject to fulfillment of other requirements of the area in which such area falls.” b) That in para 18(a) after the words “No further construction can be made in this area” the following may be added:- “The area in which the property in question situates falls under Chapter 10.6 of Interim Development Plan for Shimla Planning area whereby it has been specifically mentioned that the High Sinking Prone area includes north slope of 3 Ridge extended upto Grand Hotel in west and covering Lakkar Bazar including Central School extending Auckland Nursary School and extending down below upto Dhobighat below the Idgah Electrical Sub Station. It is pertinent to mention here that the property in question situates in Lakkar Bazar and hence falls under the category of High Sinking Prone area, hence the construction as intended by the petitioner/landlord can not be carried out as vide Notification No.TCP-F(5)-10/2001 dated 22.8.2002 the permission is granted only for single storey construction in a light weight material (excluding RCC and stone masonry) in High Sinking Prone area or Sinking area shall be permissible subject to fulfillment of other requirements of the area in which such area falls.” The landlords filed reply to the application preferred by the tenant under order 6 rule 17 of the Code of Civil Procedure. It is evident from the contents of the application under order 6 rule 17 of the Code of Civil Procedure that the same was filed primarily on the basis of notification dated 22.8.2003 issued by the Town and Country Planning Department. The sum and substance of the reply filed by the landlords to the application was that the notification dated 22.8.2002 was prospective in nature. The other ground taken was that the application for proposed amendment was filed at a belated stage. It was also contended that the application was not maintainable in view of the amended provisions of order 6 rule 17 of the Code of Civil Procedure. The learned Rent Controller (1) Shimla dismissed the application preferred by the tenant on 25.9.2002. The tenant has preferred the present petition against the order dated 25.9.2002. The Civil Revision was admitted on 12.11.2002. The landlords were proceeded exparte on the same day i.e. 12.11.2002. Ms. Seema Kaushal, Advocate has strenuously argued that the order passed by the Rent Controller (1), Shimla dated 25.9.2002 is not 4 sustainable in the eyes of law. She also contended that the provisions of order 6 rule 17 of the Code of Civil Procedure have to be construed liberally to avoid multiplicity of litigation and to decide the lis effectively. I have heard Ms. Seema Kaushal, Advocate learned counsel appearing on behalf of the petitioner and have also perused the pleadings carefully. The landlords have filed the application, as noticed above, under section 14 (3) (c) of the Himachal Pradesh Rent Control Act, 1987 requiring the premises for the purpose of building or re-building the same by dismantling the entire three storeyed building. The tenant has filed the reply to the same. It appears from the pleadings of the parties that the application has been preferred by the tenant at the stage of arguments. The thrust of the application preferred under order 6 rule 17 of the Code of Civil Procedure was that a notification has been issued on 22.8.2002 by the Town and Country Planning Department whereby certain areas were declared as sinking areas and multi storeyed structures were not permitted to be raised in those areas. The application was resisted on the grounds as mentioned in the earlier portion of the judgment. Ms. Seema Kaushal submitted that the application has been preferred by the landlords seeking eviction of her client on 28.9.2000 and the proviso to order 6 rule 17 of the Code of Civil Procedure will not be applicable. According to her, the amendment has been carried out in order 6 rule 17 of the Code of Civil Procedure with effect from 1st July, 2002. Their Lordships of the Hon’ble Supreme Court in State Bank of Hyderabad versus Town Municipal Council (2007) 1 SCC 765 have held that the amended order 6 rule 17 of the Code of Civil Procedure will not apply to the proceedings which were pending at the time of amendment in the year 2002. Their Lordships have held as under: 5 “Proviso appended thereto was added by the Code of Civil Procedure (Amendment) Act, 2002 which came into force with effect from 1.07.2002. It reads as under: "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." Section 16(2) of the Amending Act of 2002 reads as under: "16(2) Notwithstanding that the provisions of this Act have come into force or repeal under sub- section (1) has taken effect, and without prejudice to the generality of the provisions of section 6 of the General Clauses Act, 1897 _ (a) *** *** (b) the provisions of rules 5, 15, 17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and by section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of this Act;" In view of the said provision there cannot be any doubt whatsoever that the suit having been filed in the year 1998, proviso to Order VI, Rule 17 of the Code shall not apply. The High Court relied upon the said proviso and opined that having regard thereto the plaintiff was obligated to establish that in spite of due diligence it could not have raised the matter before commencement of the trial of the suit. The High Court evidently committed an illegality in relying upon the said provision.” 6 In view of the phraseology employed in section 16 (2) of the Amendment Act, 2002, the proviso to order 6 rule 17 of the Code of Civil Procedure will not be applicable in the present case. It is settled law by now that an amendment of plaint and amendment of written statement are not necessarily governed by exactly the same principle. The Courts should be more liberal while allowing amendment of written statements than of plaints. The Courts are required to be more liberal in allowing the prayer for amendment unless serious prejudice or loss is caused to the other side. The amendment to the plaint or to the written statement can be sought at any stage to avoid multiplicity of litigation. In the present case the learned Rent Controller has not taken into consideration the principles laid down by their Lordships of the Hon’ble Supreme Court while considering the application for the amendment. The Court was also bound to take into consideration the subsequent events which were necessary for determining the real controversy between the parties. The tenant by way of amendment has tried to project his case that no multiple storeyed/building was permissible in the sinking area after the issuance of notification dated 22.8.2002. The learned Rent Controller instead of considering the application seeking amendment to the written statement on merits has recorded a finding that notification dated 22.8.2002 was prospective in nature on the ground that Municipal Corporation, Shimla has accorded the permission to the landlord to raise the construction on 22.1.2000. Their Lordships of the Hon’ble Supreme Court have held in Rajesh Kumar Aggarwal and others versus K.K. Modi and others, (2006) 4 SCC 385 that the object of order 6 rule 17 of the Code of Civil Procedure is that the courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary 7 for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. Their Lordships in this judgment have also held that the court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to subserve the ends of justice. Their Lordships have further held that while considering whether an application for amendment should or should not be allowed, the court should not go into the correctness or falsity of the case in the amendment and it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. Their Lordships have held as under: Order 6 Rule 17 of CPC reads thus: "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." This rule declares that the Court may, at any stage of the proceedings, allow either party to alter or amend his pleadings in such a manner and on such terms as may be just. It also states that such amendments should be necessary for the purpose of determining the real question in controversy between the parties. The proviso enacts that no application for amendment should be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due 8 diligence, the party could not have raised the matter for which amendment is sought before the commencement of the trial. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. Order VI Rule 17 consist of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary has expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub-serve the ends of justice. It is 9 settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court. While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case. Their Lordships of the Hon’ble Supreme Court in Baldev Singh and others versus Manohar Singh and another, (2006) 6 SCC 498 have held that the court should be extremely liberal in granting the prayer for amendment. Their Lordships have further held that the courts should be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter case. Their Lordships have held as under: “Keeping this principle in mind, let us now consider the provisions relating to amendment of pleadings. Order 6 Rule 17 of the Code of Civil Procedure deals with amendment of pleadings which provides that 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. A bare perusal of this provision, it is pellucid that Order 6 Rule 17 of the Code of Civil Procedure consists of two parts. The first part is that the Court may at any stage of the proceedings allow either party to 10 amend his pleadings and the second part is that such amendment shall be made for the purpose of determining the real controversies raised between the parties. Therefore, in view of the provisions made under Order 6 Rule 17 of the CPC it cannot be doubted that wide power and unfettered discretion has been conferred on the Court to allow amendment of the pleadings to a party in such manner and on such terms as it appears to the Court just and proper. While dealing with the prayer for amendment, it would also be necessary to keep in mind that the Court shall allow amendment of pladings if it finds that delay in disposal of Suit can be avoided and that the suit can be disposed of expeditiously. By the Code of Civil Procedure (Amendment) Act, 2002 a proviso has been added to Order 6 Rule 17 which restricts the Courts from permitting an amendment to be allowed in the pleadings either of the parties, if at the time of filing an application for amendment, the trial has already commenced. However, Court may allow amendment if it is satisfied that in spite of due diligence, the party could not have raised the matter before the commencement of trial. So far as proviso to Order 6 Rule 17 of the Code of Civil Procedure is concerned, we shall deal with it later. Let us now take up the last ground on which the application for amendment of the written statement was rejected by the High Court as well as the Trial Court. The rejection was made on the ground that inconsistent plea cannot be allowed to be taken. We are unable to appreciate the ground of rejection made by the High Court as well as the Trial Court. After going through the pleadings and also the statements made in the application for amendment of the written statement, we fail to understand how inconsistent plea could be said to have been taken by the appellants in their application for amendment of the written statement, excepting the plea taken by the appellants in the application for amendment of written statement regarding the joint 11 ownership of the suit property. Accordingly, on facts, we are not satisfied that the application for amendment of the written statement could be rejected also on this ground. That apart, it is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. Accordingly, in the case of amendment of written statement, the courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter case. This being the position, we are therefore of the view that inconsistent pleas can be raised by defendants in the written statement although the same may not be permissible in the case of plaint. In the case of M/s. Modi Spinning and Weaving Mills Co. Ltd. & Anr. Vs. M/s. Ladha Ram & Co. [(1976) 4 SCC 320], this principle has been enunciated by this Court in which it has been clearly laid down that inconsistent or alternative pleas can be made in the written statement. Accordingly, the High Court and the Trial Court had gone wrong in holding that defendants/appellants are not allowed to take inconsistent pleas in their defence.” Their Lordships in Andhra Bank versus ABN Amro Bank N.V. and others, 2007 (6) SCC 167 have held that the delay is no ground to refuse the prayer for amendment. Their Lordships have further held that 12 amendment of written statement whereby the additional ground was to be introduced was permissible. Their Lordships have held as under: “We have heard Mr. Rohit Kapadia, learned senior counsel appearing for the appellant and Mr. S. Ganesh, learned senior counsel for the respondent. We have perused the original written statement as well as the application for amendment of the written statement. After going through the written statement and the application for amendment of the written statement, we are of the view that the amendment sought to be introduced by the appellant must be allowed. From a perusal of the impugned order of the Special Court we find basically that two grounds have been taken by the Special Court for rejecting the prayer for amendment of the written statement. The first ground is that considerable delay has been caused by the appellant in filing the application for amendment of the written statement. It is well settled that delay is no ground for refusal of prayer for amendment. Mr. Ganesh, appearing for ABN Amro Bank submits before us that by filing of such an application for amendment of the written statement which has been filed with long delay, the appellant sought to stall the hearing of the suit which has been fixed on 13th July, 2007. In response to this Mr. Kapadia, learned counsel for the appellant, submits that in the event the prayer for amendment is allowed by us his client undertakes to file the amended written statement by day after tomorrow, i.e., 12th July, 2007 before the Special Court. Since, we are of the view that delay is no ground for not allowing the prayer for amendment of the written statement and in view of the submissions made by Mr. Kapadia, we do not think that delay in filing the application for amendment of the written statement can stand in the way of allowing the prayer for amendment of the written statement. So far as the second ground is concerned, we are also of the view that while allowing an application for amendment of the 13 pleadings, the Court cannot go into the question of merit of such amendment. The only question at the time of considering the amendment of the pleadings would be whether such amendment would be necessary for decision of the real controversy between the parties in the suit. From a perusal of the amendment application we find that the appellant in their prayer for amendment has only taken an additional defence that in view of Section 230 of the Indian Contract Act, the suit itself is not maintainable. It is well settled, as noted herein earlier, that at the time of considering the prayer for amendment of the written statement it would not be open to the Court to go into the fact whether in fact the suit in view of Section 230 of the Indian Contract Act was or is not maintainable. That apart it is permissible in law to amend a written statement of the defendant by which only an additional ground of defence has been taken. Similarly, their Lordships of the Hon’ble Supreme Court in State of A.P. and others versus Pioneer Builders, A.P. (2006) 12 SCC 119 have held that though amendment of pleadings cannot be claimed as a matter of right under all circumstances, yet the power to allow the amendment is wide and can