MOHAMMAD AZMAL Vs. DISTRICT JUDGE

JUDGEMENT

(1.) By means of present writ petition under Article 226 of the Constitution of India, the petitioner-tenant, who was defendant before the trial court, challenges the order of the trial court dated 7th August, 2004, whereby the trial court has rejected the application 7C filed by the petitioner-tenant seeking amendment in the pleadings on the ground that the application is barred by principles of res judicata. The aforesaid application has been decided by the trial court as per direction issued by this Court, whereby this Court directed the trial court to decide issue No. 2 afresh vide its judgment and order dated 30th April, 2001 in the earlier writ petition filed by the petitioner being Civil Misc. Writ Petition No. 7703 of 1987, Champa Lal Jain v. Additional District Judge, Lalitpur and Ors.. The relevant portion of the judgment of this Court runs as under : "Thus, the tenant cannot be given advantage that the Act became applicable during the pendency of the suit. It is clear that the Act is not applicable in the present case. The question now to be determined is whether a valid notice under Section 106 of the Transfer of Property Act was served upon the respondent or not. The Judge Small Cause Court framed issue No. 2 and decided this issue on the ground that the tenancy cannot be terminated under Section 106 of the Transfer of Property Act and can only be terminated on the grounds mentioned under Section 20 of the U. P. Act No. 13 of 1972. The revisional court has not considered this aspect of the matter. Since I have already held that U. P. Act No. 13 of 1972 is not applicable, the Judge Small Cause Court is therefore directed to decide as to whether the tenancy was actually terminated by the said notice or not. In the result, the writ petition succeeds and is allowed in part. The judgment and orders dated 10.2.1986 and 22.1.1987 passed by the respondents No. 2 and 1 are set aside and the matter is remanded back to the Judge Small Cause Court to decide the matter afresh in the light of the observation made above within a period of three months from the date of the production of the certified copy of this judgment."

(2.) Admittedly, this Court directed the trial court to decide the matter afresh within a period of three months from the date of production of the certified copy of this judgment. Learned senior counsel appearing on behalf of the petitioner Sri V. C. Mishra contended that in view of the decision of the Apex Court in Gauri Shankar v. Hindustan Trust (Pvt.) Ltd., and Ors., AIR 1972 SC 2091. Paragraph 7 of the aforesaid judgment relied upon by learned counsel for the petitioner is reproduced below :

(3.) Learned counsel appearing on behalf of the petitioner further relied upon a decision in Punjab National Bank v. Indian Bank and Anr., 2003 (3) AWC 2291 (SC) : 2003 (2) SCCD 551 : AIR 2003 SC 2284, wherein the Apex Court has ruled that : "The plaintiff was entitled to amend the plaint. The claim in terms of dollars has been made in different paragraphs of the plaint as well as in the prayer clause, no new relief is sought to be added, only rupee equivalent of the dollar, is sought to be deleted and a clear prayer for decree in dollars would, resultantly remain there, by deletion of rupee component equivalent to the dollars. No question of introducing any new case, a new cause of action or seeking new relief which may be barred by limitation arises. It is an amendment more clarificatory in nature. A matter already contained in the original pleading can always be clarified and such an amendment should ordinarily be allowed and in such a case the question to bar of limitation would not be attracted."