KANHIYA LAL Vs. KAKESHI DEVI

JUDGEMENT

(1.) APPLICATION under order 6 Rule 17 was submitted by the petitioner defendant was dismissed by the learned Addl. District Judge No. 3 Jodhpur in first appeal No. 26/98, by order dated 25. 8. 98. The revision has been preferred against the order. The facts may be narrated as follows:

(2.) RESPONDENT-plaintiff is the landlord and petitioner defendant is a tenant. Plaintiff filed a suit for arrears of rent and eviction on the ground of personal bonafide need. The suit was decreed by the trial Court and the tenant preferred appeal No. 26/98 before the District Judge Jodhpur who transferred the same to the learned Addl. District Judge. There petitioner- defendant-tenant moved an application under Order 6 Rule 17 C. P. C to amend the written statement as well as the ap- peal to the effect that since rent of the suit property was only Rs. 35/- initially and the same was increased from time to time and ultimately came to be Rs. 150/- per month, the same be adjusted in suit due. The tenant petitioner therefore, wanted to plead that he had made payment of an amount more than the standard rent. should be adjusted. It was pleaded before the appellate Court that the defendant could not take this plea inadvertantly in the written statement and now permission may be given to add the following paragraphs: ********

(3.) LEARNED counsel for the respondent relied on Kapur Chand Singhal vs. Gopal Prasad (15) in which amendment was refused because the application was filed after a long lapse of time from the date of suit and the application was filed after the suit was decreed. It was held that application cannot be termed to be bonafide. In view of the A. I. R. 1991 Page 216 (Supra) the Court can look into a new plea which is being sought to be added. If the court finds that the plea is such which is vital for determination of controversy the amendment can be allowed at any stage. In 1992 (1) R. L. R. Page 752 (16) relied by the counsel for the respondent plea for fixation of standard rent was taken after 5 years of filing of suit and after evidence of plaintiff was complete. It was held that this application being highly delayed and was for the purpose of delaying proceedings deserved to be rejected because the defendant can file fresh proceedings for fixation of standard rent. Here the defendant petitioner has come up with a new plea for adjustment of rent which he has paid to the landlord without getting the standard rent fixed to adjust the rent. He knew it very well that the agreed rent between the parties was Rs. 35/- per month only but even then he went on to increase the amount of rent as per the demand of the plaintiff. At the time of filing of the civil suit the suit rent was Rs. 150/- per month. The defendant did not raise the plea that the rent was only Rs. 35/- per month when he submitted the written statement and contested whole suit. He wants to take such a plea in appeal which he can get decided separately by a sep- arate suit by filing a suit of standard rent. The learned appellate Judge in my view was right in coming to the conclusion that the defendant petitioner had not come with bonafide by saying that he could not take plea inadvertantly. The facts were within the knowledge of the defendant petitioner. By saying that he inadvertantly did not plead the same in the written statement is just a pretext to further delay the proceedings.