MAHENDRA GUPTA Vs. MOHD.YUNUS

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India is filed by the petitioner, who is a defendant in the suit filed by the respondent in the Court of II Civil Judge Class-I, Jabalpur, against the order dated 28-1-2013, passed in Civil Suit No. 77-A/2012, rejecting the application of the petitioner made under Order 6, Rule 17 of the Code of Civil Procedure (hereinafter referred to as CPC for brevity) for amendment in the written statement. It is contended that a suit was filed by the respondent/plaintiff against the petitioner/defendant for recovery of rent due, alleging that the petitioner/defendant was tenant in Shop Nos. 395/1 and 395/2 and was in arrears of rent, therefore, suit was required to be filed for eviction under the provisions of section 12(1)(a) of the M.P. Accommodation Control Act, 1961. It is contended by the petitioner that by filing a written statement, such a claim made by the respondent/plaintiff was denied and it was categorically contended that the demise premises were in fact let out to two brothers, namely, the petitioner herein and his another brother, but the suit has been filed only against the petitioner. In the preliminary objection, it was said that in a Civil Suit earlier filed, a judgment and decree was passed and against the said judgment and decree, an appeal was preferred. The said judgment and decree will operate as res judicata. It is the case of the petitioner/defendant that issues were framed and evidence of the parties was recorded. However, later on an application was made by the petitioner seeking amendment in the written statement contending inter aha that specific pleas were to be raised in respect of tenancy and since such averments were required to be made, though pleas have been raised in the written statement in that respect to some extent, but amendment in the written statement would be necessary to clarify the stand taken by the petitioner/defendant. Such an application was opposed by the respondent/plaintiff and the same has been dismissed by the impugned order, therefore, this writ petition is required to be filed. It is contended by learned counsel for the petitioner that amendment was not creating any hurdle in the way of the respondent/plaintiff as he was aware of the fact that there were two tenants in the suit premises and he was required to implead both of them as defendants in the suit. If that was the situation and if such a statement was made to some extent in the written statement, the Court below was not right in holding that a new plea is raised by the petitioner after the closure of trial of the suit by proposing the amendment in the written statement. Thus, it is contended that the approach of the Court below was incorrect and as such, the order impugned is liable to be set aside. The application for amendment in the written statement made by the petitioner is liable to be allowed.

(2.) Opposing such a claim made by the petitioner, learned counsel for the respondent has contended that specific pleadings were made in the plaint, copy of which is available on record as Annx.P/1. In paragraph 2 of the plaint, the respondent/plaintiff has categorically pleaded that the demise premises were let out to the petitioner/defendant and his brother Deepak Gupta by one Smt. Idda Bi, on monthly rent of Rs. 700/-. Though the shops were let out to two different persons, namely, the petitioner herein and his brother, yet the petitioner alone was running the shop in the name and style of Mahendra Kirana Store in both the shops by putting a door in the partition wall of the said shops. This particular averment made in the plaint was required to be denied by the petitioner/defendant in case he was of the view that shops were separately let out to the petitioner herein and to his younger brother. On the contrary, the petitioner has admitted the contents of para 2 of the plaint except that the door in the partition wall of two shops was put by the petitioner. He has stated that such a door was there right from the inception of tenancy. He has not objected to this that the shop in question was not let out to the petitioner only, but his brother was also a necessary party in the suit as the adjoining shop was let out to him. Nothing has been said in this respect in the entire written statement even when the pleadings were raised in detail. It is contended that the petitioner was well aware of the fact that earlier there were suits filed against the petitioner and his brother and, thus, if the petitioner was of the view that the brother of the petitioner was also to be impleaded as a party if at all any effective decree is to be obtained, he should have taken this stand at the initial stage when the written statement was filed. Virtually by admitting the averments made in the plaint, the petitioner has accepted the correctness of the allegation that shops were in fact in possession of the petitioner only. Now after the closure of evidence of the parties, new plea is being raised by seeking amendment in the written statement stating that the respondent was required to file a separate suit in respect of shop No. 395/1 which is in possession of Deepak Gupta, the brother of the petitioner/defendant. As the evidence of parties are closed, it will not be possible for the respondent/plaintiff to meet out such averments unless effectively evidence is recorded and, therefore, a prejudice would be caused to the respondent. It is, thus, contended that in view of the well settled law, such a proposed amendment of the petitioner was not found bona fide and the same has been rejected rightly. The law laid down by the Apex Court and the law as considered by this Court has been pointed out by learned counsel for the respondent and it is contended that the writ petition being devoid of any substance deserves to be dismissed.

(3.) Heard learned counsel for the parties at length and perused the record.