GOPAL SINGH AND OTHERS vs SMT. DURGA SINGH RATHORE ALIAS DURGA RATHORE

This civil petition under Article 227 of the Constitution of India has been filed by Gopal Singh, Kumari Neema Manral and Ravi Manral, who are

appellants in Rent Control Appeal No. 16 of 2016 pending before 1st Additional District Judge, Nainital. They have challenged the order dated

06.02.2018, passed by the Appellate Court, whereby their application seeking leave to amend their written statement has been rejected.

Smt. Durga Singh Rathore (landlady) filed an application for release of the premises in question under Section 21 (1) (a) of U.P. Act No. 13 of

1972 before the Prescribed Authority. Petitioners, who are the tenants, filed their written statement in the said proceedings. Subsequently, petitioners

sought leave to amend the written statement by filing an application before the Prescribed Authority which was rejected vide order dated 31.05.2016.

The said order was not challenged by the petitioners, therefore, it attained finality. Ultimately the release application of the landlady was allowed by

the Prescribed Authority vide judgment and order dated 30.09.2016.

Petitioners, who were respondents in the proceedings before Prescribed Authority, filed an appeal against the judgment rendered by Prescribed

Authority under Section 22 of U.P. Act No. 13 of 1972, which is pending before 1st Additional District and Session Judge, Nainital.

The petitioners moved another amendment application before the Appellate Court in which the amendment sought by them was same as was

sought by them earlier before the Prescribed Authority and the same was rejected. Vide order dated 06.02.2018 which has been challenged in the

present petition.

I have heard learned counsel for the parties and perused the order impugned in the civil petition. Upon perusal of the order impugned, this Court

finds no infirmity in the same. Rejection of the earlier amendment application filed by the tenants/petitioners would operate as a constructive res

judicata as held by Hon’ble Supreme Court in the case of Ajay Mohan and others vs. H.N. Rai and others reported in (2008) 2SCC

507.  Â

In such view of the matter, there is no scope for interference in the matter and accordingly the writ petition is dismissed. Since Section 105 of Code

of Civil Procedure permits a party, who is aggrieved by rejection of his application, to challenge the same while challenging the final judgment/decree

therefore, petitioners shall be at liberty to seek appropriate amendment in the memorandum of appeal and if such application seeking amendment in

memorandum of appeal is filed before the Appellate Court, the same shall be considered, in accordance with law.