Madan and others vs Additional District Judge and others

S.P. Mehrotra, J.—This writ petition has been filed by the petitioners under Articles 226/227 of the Constitution of India, inter alia, praying for quashing the order dated 2.9.2003 (Annexure 8 to the writ petition) passed by the learned Additional District Judge (Court No. 9), Bareilly (respondent No. 1). .

The dispute relates to a shop situated at 126 B.I. Bazar, Cantonment, Bareilly, the details whereof have been given in the release application referred to hereinafter. The said shop has, hereinafter, been referred to as "the disputed shop".

From a perusal of the averments made in the writ petition and the annexures thereto, it appears that the respondent No. 3 filed a release application under section 21 (1) (a) of the U.P. Act No. 13 of 1972 (in short "the Act") for the release of the disputed shop on the ground of bona fide need. The said release application was registered as P.A. Case No. 48 of 1989. A copy of the release application has been filed as Annexure1 to the writ petition.

It further appears that the petitioners contested the said release application, and filed written statement, a copy whereof has been filed as Annexure2 to the writ petition.

It further appears that by the judgment and order dated 30th August, 1993, the learned 1st Additional Civil Judge/Prescribed Authority, Bareilly allowed the said release application. A copy of the said judgment and order dated 30th August, 1993 has been filed as Annexure3 to the writ petition.

It further appears that the petitioners filed an appeal under section 22 of the Act against the said judgment and order dated 30th August, 1993. The said appeal was registered as Rent Control Appeal No. 94 of 1993. A copy of the memorandum of appeal of the said Rent Control Appeal No. 94 of 1993 has been filed as Annexure4 to the writ petition.

It further appears that during the pendency of the said Rent Control Appeal No. 94 of 1993, the petitioners filed an amendment application dated 3rd February, 2003, a copy whereof has been filed as Annexure5 to the writ petition.

By the said amendment application dated 3rd February, 2003, the petitioners sought to incorporate paragraph 15Al in their written statement. The said paragraph 15AI sought to be incorporated in the written statement is quoted below:

"15Al. That the landlord Sri Jagan Nath Bhatia has been continuously taking contracts from the Military Engineering Services and other wings of the said department. His version that he had discontinued the contract business and the ties of relations in between him and those officials had already broken and he is sitting idle, is false. The landlord has recently obtained contract for "REPAIRS TO CERTAIN ROADS AT BANBASA'' being contact agreement No. "G.E. No. 2/BJy/23 of 20002001" vide letter dated 3.10.2000."

It further appears that the petitioners also filed documents being photostat copy of letter, the details whereof are given in the list of documents annexed as Annexure6 to the writ petition.

It further appears that objections were field on behalf of the respondent No. 3, a copy whereof has been filed as Annexure7 to the writ petition.

By the order dated 2nd September, 2003 (Annexure8 to the writ petition) passed by the learned Additional District Judge, (Court No. 9), Bareillv (respondent No. 1) rejected the said amendment application filed by the petitioners.

It was, inter alia, observed that the documentary evidence regarding M.E.S. contract of the respondent No. 3 filed by the petitioners at the appellate stage could be considered at the final hearing without additional amendment in the written statement subject to the evidence being relevant, admissible and credible.

Thereafter, the petitioners have filed the present writ petition seeking the reliefs mentioned above.

I have heard Shri B.B. Paul, learned Counsel for the petitioners.

It is submitted by Shri Paul that the respondent No. 1 has acted illegally in rejecting the amendment application filed on behalf of the petitioners. It is submitted that liberal approach should be adopted in dealing with amendment application, particularly, when the amendment of written statement is sought.

It is further submitted that without pleadings, it would not be permissible for the appellate authority to look into the evidence filed by the petitioners at the appellate stage.

Shri Paul, learned Counsel for the petitioners has relied upon the following decisions in support of his submissions :

Nrisingh Prosad Paul v. Steel Products Ltd. AIR 1953 Cal 15.

Jai Jai Ram Manohar lal v. National Building Material Supply Gurgaon. AIR 1969 SC 1267 (paragraph 5).

Mohammad Mustafa v. Sri Abu Bakar and others. 1970 (3) SCC 891.

Shikarchand Jain v Digamber Jain Praband Karini Sabha and others. AIR 1974 SC 1178.

Mulk Raj Batra and others v. District Judge, Dehradun and others. 1982 (3) SCC 233.

I have considered the submissions made by Shri Paul, learned Counsel for the petitioners.

It is well established that the Court should adopt liberal view in the matter of amendment subject to wellestablished principles laid down in various decisions dealing with the amendment of pleadings with reference to Order VI, Rule 17 of the Code of Civil Procedure. This is evident from the decisions relied upon by the learned Counsel for the petitioners. However, in the present case, the question arises as to whether keeping in view the well established principles governing the amendment of pleadings, the amendment application filed by the petitioners at the appellate stage deserved to be allowed or not.

A perusal of the written statement, a copy whereof has been filed as Annexure2 to the writ petition, shows that the following allegations have already been made in paragraph 15A of the written statement:

"15A. That the landlordapplicant has stated absolutely falsely that he had discontinued the contract work. In fact the applicant has been doing the contract work of the M.E.S with full swing and his version is wholly false and he is liable to be prosecuted under the provisions of section 193, I.P.C. for which this Hon''ble Court will have to proceed under section 340, Cr.P.C. The landlordapplicant has obtained a new contract worth Rs. 2,97,000/ (? Two lakhs ninety seven thousand) vide letter No. 8200/372/26/E8 dated 19th June, 1993 issued by Sri M.S. Hooda, Col. Commander Works Engineer, Station Road,.Bareilly as accepting officer on behalf of the President of India."

It is thus, evident that the pleading by the petitioners that the respondent No. 3 had not stopped contract work of M.E.S., and was continuing the same, was already there in the written statement.

It is also well established that in the pleadings, only material facts are to be pleaded and evidence is not to be pleaded.

Order VI, Rule 2 of the Code of Civil Procedure lays down as follows :

"12. Pleading to state material facts and not evidence. (1) Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.

(2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph.

(3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words]."

In the circumstances, there was no occasion for the petitioners to have filed the said amendment application dated 3rd February, 2003 at the appellate stage seeking to incorporate paragraph 15Al in the written statement.

It is further noteworthy that in the memorandum of appeal also, the petitioners took a ground in this regard in Ground No. 5.

It is further noteworthy that the appellate authority has itself observed in the impugned order dated 2nd September, 2003 that the documentary evidence regarding M.E.S. contract of the respondent No. 3 filed at the appellate stage could be considered at the final hearing without additional amendment of the written statement subject to the evidence being relevant, admissible and credible.

In view of the said observation, I am of the opinion that no prejudice has been caused to the petitioners by the rejection of the amendment application.

In view of the aforesaid discussion, I am of the opinion that the writ petition lacks merit, and the same is liable to be dismissed. The writ petition is accordingly dismissed.