Yad Ram and Another vs Surjan Singh and Others

Kurian Joseph, C.J.—The Petitioners are aggrieved since their application under Order VI Rule 17, CPC has been dismissed by the trial Court. The Petitioners are the tenants. They have taken the defence that there is no landlord-tenant relationship. After the trial commenced, an application for amendment was moved for incorporating a new ground that no notice u/s 106 of the Transfer of Property Act had been issued. The trial Court found that among other things the application does not satisfy the mandatory requirement of the proviso to Rule 17 of Order VI, CPC, The trial Court has taken note of the fact that the Petitioners herein have not assigned any reason as to why the said plea of absence of notice u/s 106 of the Transfer of Property Act was not raised at the time of filing the written statement. It is also not stated in the application that despite due diligence the Petitioners could not raise the above plea before the commencement of the trial or at the time of filing the written statement. It is also noted that the written statement was filed as early as on 17.2.2003. In such a factual matrix the trial Court has rightly dismissed the application in view of the judgment of the Supreme Court in Vidyabai and Ors. v. Padmalatha and Anr. 2009(1) CCC 798 (SC). There is no merit in the Petition. The same is dismissed, so also the pending application.