IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CIVIL REVISION NO.6642 OF 2006 DATE OF DECISION: JANUARY 28, 2008 Ashwani Kumar Aggarwal .....Petitioner VERSUS Shanti Lal ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Baldev Raj Mahajan, Advocate, for the petitioner. Mr. V. K.Sandhir,Advocate, for the respondent. **** RANJIT SINGH, J. The prayer of the petitioner for amendment of his rent petition is declined. Aggrieved against the same, the petitioner has filed the present revision petition. The petitioner-landlord has purchased a property bearing No.2272/1, Bagh Rama Nand, Amritsar, from Kharaiti Ram vide sale deed dated 24.1.1994. Respondent was a tenant under said Kharaiti Ram on the part of ground floor of the property. On 30.11.1996, the petitioner-landlord filed an application for ejectment of the tenant, claiming that he has taken on rent two rooms, kitchen and bathroom from Kharaiti Ram and had subsequently taken another room on CIVIL REVISION NO.6642 OF 2006 :{ 2 }: rent from Narinder Nath son of Kharaiti Ram. The petitioner has sought ejectment on the ground that the premises are needed for use and occupation by him and his family members. Other grounds are also raised. This ejectment application is pending since the year 1996. The petitioner has now moved an application, seeking amendment, saying that the same is needed to avoid any complication and multiplicity of the proceedings. By this amendment, the petitioner wants to add words “alongwith two Mianis” in Para 1 of the ejectment application where the tenanted premises is described. It is specifically pleaded that the petitioner is not to lead any further evidence in this case. This application filed by the petitioner has been rejected by the trial Court stating that the amendment would cause prejudice to the respondent. Mr.Baldev Raj Mahajan, Advocate, appearing for the petitioner, would say that the Rent Controller has dismissed the prayer of the petitioner mainly by keeping in view the provisions of Order 6 Rule 17 CPC as amended, which would not apply to the present case. The counsel refers to Section 16(2)(b) of the Code of Civil Procedure (Amendment) Act, 2002 (for short, “the Act”), to urge that the amended provisions would not apply to the proceedings in respect of suits, which are filed prior to the date of amendment. In support of this submission, he has referred to Section 16(2)(b) of amending act and has placed reliance on the case of Vijay Kumar Versus State Bank of India, 2006 (2) RCR (Civil) 173. This Court has observed that the provisions of Order 6 Rule 17 CPC, as CIVIL REVISION NO.6642 OF 2006 :{ 3 }: amended or as the case may be, inserted or substituted by Section 16 of CPC (Amendment) Act, 1999 and by Section 7 of the Act shall not apply in respect of any pleadings filed before commencement of Section 16 of the CPC (Amendment) Act, 1999 and Section 7 of the Act. It is accordingly held that effective date for enforcement of the provisions is 1.7.2002. The counsel accordingly contends that the impugned order can not be sustained as the same is made by keeping in view the provisions of Order 6 Rule 17CPC as amended. To justify his act in seeking this amendment, the counsel would refer to the reply filed by the respondent to the application for ejectment wherein the stand taken by the respondent is that he took two rooms at the backside, kitchen, verandah, one front room, latrine, bathroom, deori, terrace, one miani on the room of the backside, one miani on the kitchen on 31.3.1982 by a rent note dated 31.3.1982. It is on this premise, he says that the petitioner would not be able to get any effective relief even if the ejectment of the respondent is ordered. Though the earlier stance of the petitioner is that the respondent had forcibly occupied two mianis and the respondent had claimed that this portion was also given on rent to him by the previous owner. The petitioner says that in order to cut short the controversy, he has prayed for amendment of the description of the premises so that ejectment, if ordered, could relate to all the property in occupation of the respondent. Learned counsel for the respondent, however, seriously objects to the plea raised by counsel for the petitioner. He would say CIVIL REVISION NO.6642 OF 2006 :{ 4 }: that permission, if granted, would lead to an inconsistent plea being raised by the petitioner, which can not be permitted. He would refer to the case of Baldev Singh & Ors. Vs. Manohar Singh & Anr., 2006 (3) RCR (Civil) 844 to say that the inconsistent plea may be allowed to be made in the written statement but may not be allowed in a plaint. Reference is also made to Prem Chand Vs. Chetan Dass, 2006 (1) R.C.R. (Civil) 164 in this regard. It is observed in this case that power to allow amendment s is meant to be exercised only in appropriate cases in the interest of justice. The liberal approach should not result in injustice and prejudice to the other party. It is further observed that the party can not be allowed to add or substitute a new cause of action or nature of claim or an inconsistent plea to the admitted facts or to introduce a time barred claim by way of amendment. Reliance is also placed on the case of Sudarshan Chhabra Vs. Paramjit Singh Gill, 2008 (1) RCR (Civil) 38. In this case, landlord had filed an application for eviction of the tenant from two rooms and thereafter filed another application for amendment of the pleadings on the ground that two rooms were forcibly occupied by tenant when he was away to Canada. This amendment was not allowed by observing that prima-facie the tenant would be deemed to be a tress-passer and possession in that situation can only be obtained from the civil Court by filing a suit for possession, for which the Rent Controller would not have any jurisdiction to entertain and try the amended petition. I have considered the respective submissions made by CIVIL REVISION NO.6642 OF 2006 :{ 5 }: the learned counsel. In Baldev Singh's case (supra), the law relating to amendment of the pleadings has been dealt with in detail by the Hon'ble Supreme Court. The principles in regard to amendment, as observed by the Hon'ble Supreme Court are that Court should be extremely liberal in granting the prayer for amendment of the pleadings unless serious injustice or irreparable loss is caused to the other side. Reference has also been made to the case of Ma. Shwe Mya Vs. Maung Mo Hnaung, AIR 1922 P.C. 249. It is observed in Ma Shwe Mya's case (supra) that:- “All rules of courts are nothing but provisions intended to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change by means of amendment, the subject-matter of the suit.” Thus, subject matter of suit can not be changed by way of amendment and so also there is no power available to substitute a cause of action with distinct cause. Hon'ble Supreme Court in Baldev Singh's case (supra) also observed 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. It is further observed that the CIVIL REVISION NO.6642 OF 2006 :{ 6 }: Court shall allow amendment of pleadings if it finds that delay in disposal of suit can be avoided and that the suit can be disposed of expeditiously. Dissecting the provisions of Order 6 Rule 17, it is noted that second part of the provision provides that such amendment shall be made for the purpose of determining the real controversies raised between the parties. Proviso introduced through amending Act 2002 restricts the court in permitting an amendment and where trial is commenced the court may allow such amendment, if it is satisfied that despite due diligence the party could not have raised the matter before the commencement of trial. The amending provision is not applicable to the present case, as already observed . It can be noticed that there is a wide power and unfettered discretion in allowing the amendment of the pleadings if it appears to the Court to be just and proper. Reference here may be made to Rajesh Kumar Aggarwal & Ors. Vs. K.K.Modi & Ors., 2006 (2) R.C.R. (Civil) 577. It is viewed that Order 6 Rule 17 consists of two parts and that 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. This real controversy test is stated to be cardinal test. In Ragu Thilak D. John Vs. S. Rayappan, (2001) 2 SCC 472, it is observed that dominant purpose of Order 6 Rule 17 is to minimise litigation. Reference is also made to Jai Jai Ram Manohar Lal Vs. National Building Material Supply, Gurgaon, 1969(1) SCC 869. It is held that a party can not be refused just relief merely because of some CIVIL REVISION NO.6642 OF 2006 :{ 7 }: mistake, negligence, inadvertence or even infraction of the rules of procedure. The court went on to observe in this case that however negligent or careless may have been the first omission and however late the proposed amendment, it may be allowed if it can be made without injustice to the other side. Following observations made in the case of N.K.Narayana Pillai Vs. Parameshwaran Pillai, (2000) 1 SCC 712 can also be noticed in regard to rule of amendment:- “3. The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such term,s as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled-for multiplicity of litigation.” A word of caution in regard to permitting amendment was sounded by Privy Council in the case of Kanda and others Vs. CIVIL REVISION NO.6642 OF 2006 :{ 8 }: Waghu, AIR (37) 1950 PC 68 by saying:- “The power of amendment must be exercised in accordance with legal principles. An amendment, which involves the setting up a new case and alters the real matter in controversy between the parties cannot be allowed.” One of the consideration which is relevant to allow amendment is if it can lead to avoiding delay in disposal of the suit. The present amendment sought would rather avoid delay in disposal of the suit as otherwise, the petitioner would not be in any position to get an effective decree passed in his favour. These considerations apparently have escaped attention of the Court while declining the prayer of the petitioner. The Court seems to have guided itself more towards the proviso to Order 6 Rule 17 CPC, which would not be applicable in this case. The counsel for the respondent has heavily relied on the observations made in the case of Sudarshan Chhabra (supra) as noted earlier where it is held that plea of forcible occupation can not be tried by a Rent Controller. In Sudarshan Chhabra (supra), the plea in the rent petition was being raised that two rooms were forcibly occupied by the tenant when the landlord was away to Canada. No plea was being raised by way of amendment that these two rooms were rented to the tenant. In the present case, though the earlier stand of the petitioner was that two rooms at the backside, kitchen, verandah, one front room, latrine, bathroom, deori, terrace, one miani CIVIL REVISION NO.6642 OF 2006 :{ 9 }: on the room of the backside, one miani on the kitchen were occupied but yet now the case set up by way of amendment is that these are under tenancy of the respondent and hence, ejectment therefrom is also sought. It would have been a different matter if the amendment sought would have been about forcible occupation like in Sudarshan Chhabra's case (supra). It is well within the jurisdiction of the Rent Controller to deal with and allow prayer brought in by way of amendment. It is conceded during the course of arguments that the plea of forcible occupation of this portion of the property was not initially raised in the plaint. If that be so, it can not be now said that there is any inconsistent pleading being made by the petitioner. In the replication, the petitioner apparently has responded to the plea raised by the respondent that this portion was forcibly occupied, which he now wishes to change to plead that this is under the tenancy of the respondent as conceded by the respondent and hence he is seeking his ejectment therefrom. The facts in the present case, as such, are distinguishable from the case of Sudarshan Chabra's case (supra). An extremely liberal approach in allowing amendment is advocated by the Hon'ble Supreme Court. It is to be seen if it would result in any serious injustice or irreparable loss to the other side. Since the case set up by the respondent is that this premise is on rent with him, he is not taken by any surprise and otherwise would not prejudice the respondent or put him to any loss if this amendment is permitted. It is required to be noticed that the petitioner has CIVIL REVISION NO.6642 OF 2006 :{ 10 }: conceded in the application as well as in the revision petition that he would not lead any further evidence in case this amendment is permitted. Accordingly, I am inclined to accept the plea raised by the petitioner. The impugned order, declining the prayer of the petitioner for amendment of the plaint, as such, can not be sustained. The same is accordingly set-aside. The petitioner would be permitted to amend the plaint as prayed. The petitioner, however, will not be permitted to lead any further evidence. The Rent Controller would be at liberty to afford opportunity to the respondent as required under law. The petitioner, however, need to compensate the respondent and as such, would pay costs of Rs.10,000/- in this regard, which shall be deposited before the Rent Controller on the next date, which the respondent can claim. The present revision is allowed in the above terms. January 28 ,2008 ( RANJIT SINGH ) khurmi JUDGE