AHMED NISA Vs. MALIK MOHD ATIQ

JUDGEMENT

(1.) THE petitioner by this petition has assailed the validity of order dated 7. 3. 2008 whereby an application of the petitioner under Order 6 rule 17 cpc seeking amendments in the WS was partly allowed.

(2.) THE petitioner, a tenant, facing an eviction petition before the learned ARC moved an application under Order 6 rule 17 CPC for amendments in the ws when the case was fixed for final arguments, seeking to bring on record two subsequent events. The petitioner contended that the landlord had offered her a sum of Rs. 2 lac to vacate the property recently and she wanted to incorporate this fact and the other amendment she sought was that during pendency of the petitioner property no. 1456 Gali Masjid Sayed Rafai, Chitli Qabar, Delhi owned by the landlord got vacated. The learned ARC allowed the amendment of WS to the extent that property no. 1456 got vacated during pendency of the eviction petition, but dismissed the application as far as allegation regarding offer of rs. 2 lac was concerned. The learned ARC observed that the proposed amendment in respect of Rs. 2 lac had no bearing on the case. However, the learned ARC observed that even after the amendment, there was no necessity of fixing the case again for further evidence because the fact of property no. 1456 falling vacant had already come on record during the trial of the case and evidence was led in respect of the property being vacated. The petitioner in reply to application under Order 6 Rule 17 CPC also admitted that property no. 1456 had been vacated. The tenant wanted to lead evidence to prove the extent of the property. The learned ARC observed that while the contention of the petitioner was that the property consisted of one room with dalan and courtyard, the landlord contended that it was only one room without a courtyard or dalan. This difference between the extent of property was not going to affect the merits as the Court had only to take into account the habitable rooms and since one habitable room admittedly had come into possession of the landlord, this fact could be considered in the arguments and no evidence was required.

(3.) THE Counsel for the petitioner stated that the learned trial court had discussed the merits of the amendment. The Court was not supposed to discuss the merits of the amendment while allowing the amendment. The Court was supposed to allow the amendment and then allow the petitioner to lead evidence. He relied upon Usha Balashaheb Swami and Ors. Kiran Appaso Swami and Ors. V (2007) SLT 187. I consider that this judgment is not applicable in this case. The trial Court had not rejected the application of the petitioner. The Trial court had in fact allowed the amendment. The issue arises whether after allowing the amendment, was it necessary for the trial Court to again fix the case for evidence