SHREE RAM GUPTA Vs. SHAFIQUER RAHMAN

JUDGEMENT

(1.) This revision is directed against the order of the Judge, Small Causes Court dated 3.10.2009 by which he has rejected the amendment application filed by the petitioner, who was defendant in the suit.

(2.) The respondent filed S.C.C. Suit No. 58 of 2004 for ejectment and arrears of rent in which the petitioner was defendant No. 1. The petitioner filed the written statement and contested the case. It appears that evidence of both the parties have been closed on 10.7.2007 and 26.7.2007 was fixed for hearing. Further an application under Order 15 Rule 5 C.P.C. was moved, which has not been replied by the defendants. On 25.1.2008 the petitioner-defendant moved an application seeking permission to deposit rent of Rs. 20,000/-, which has been allowed on 28.1.2008 and thereafter a date was fixed for disposal of the application under Order 15 Rule 5 C.P.C. On 2.4.2008, defendant No. 2 Shree Kant Gupta, filed amendment application which has been rejected on 7.8.2008. Shree Kant Gupta filed Revision No. 385 of 2008 before this Court against the said order dated 7.8.2008 which has been rejected by this Court on 20.10.2008. Thereafter, on 2.2.2009, the petitioner-defendant No. 1, Shree Ram Gupta filed amendment application. The said amendment application has been rejected by the impugned order. The court below has held that the amendment application has been filed after one year seven months from the date of the close of evidence just to delay the proceeding. It has been further observed that the amendment application has been filed by the petitioner after rejection of the earlier amendment application filed by defendant No. 2. The amendment application has been rejected also on the ground that the petitioner-defendant No. 1 by way of amendment intended to resile with the earlier admission and the pleadings taken in the written statement. On these grounds it has been held that the amendment application was moved to delay the proceeding with mala fide intention. Heard Sri S.C. Tiwari, learned Counsel for the applicant, and Sri Saurabh Srivastava appearing on behalf of the respondents.

(3.) Learned Counsel for the petitioner submitted that by the amendment the applicant has raised the plea that the construction of the premises in dispute was made prior to 1972 and, therefore, Act No. 13 of 1972 was applicable and, therefore, the S.C.C. Suit filed was not maintainable. This plea is necessary to adjudicate the issue and, therefore, ought to have been allowed. He submitted that the apex Court in the case of Andhra Bank v. ABN Amro Bank N.V. and Ors.,2007 3 ARC 410 has held that the delay is no ground for refusing the prayer of amendment. He further submitted that defendant No. 2 had earlier moved the application raising the plea that during pendency of the proceeding, on the intervention of the neighbours, the dispute has been settled between the parties and, according to which, the plaintiff-landlord has received the rent in cash upto December, 2007 and agreed to withdraw the suit and when he refused to withdraw the suit a sum of Rs. 20,000/- was deposited on 12.2.2008 in the court. It was pleaded that since the above facts have come into existence after filing of the written statement, such amendment was liable to be allowed. However, the amendment has been rejected on the ground that it has been moved after nine months from the date of the close of the evidence.