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Damodara Sastry Vs. Nilgiri Sanjiviah - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 342 of 1954
Judge
Reported inAIR1955Kant141; AIR1955Mys141
ActsCode of Civil Procedure (CPC), 1908 - Sections 115 - Order 6, Rule 17
AppellantDamodara Sastry
RespondentNilgiri Sanjiviah
Appellant AdvocateE. Kanakasabhapathy, Adv.
Respondent AdvocateK.P. Muddappa, Adv.
Excerpt:
- constitution of india articles 226 & 227; [n.k. patil, j] resolution passed by the gram panchayath for issue of hakku patras legality of issue of hakku patras questioned in writ petition non-consideration of petitioners representation to the revenue department to take appropriate action - held, the petitioner has not challenged the correctness of issue of hakku patras in favour of respondents 4 to 20. it is open for the petitioner to redress its grievance through proper channel under the provisions of panchayat raj act. petitioner cannot directly make representations to the revenue authorities in the light of the resolution passed by the gram panchayath. writ petition is mis-conceived. .....in the original written statement filed by the defendant,he has admitted that he has been in possession ofthe suit premises as a tenant, and his contentionis that he is not a tenant under the plaintiff butunder some one else. thus, it is clear that theproposed amendment, if allowed, would changethe nature of the defence as originally put forward by the defendant; for the amendment allowed must be such as is either raised in thepleadings or is consistent with the case as originally laid. the object of order 6, rule 17, c.p.c. isto allow amendment for the purpose of determining the real questions in dispute between the parties. the real issue between the parties, according to the pleadings, would be whether the defendant is a tenant of the plaintiff or not. the amendment sought for.....
Judgment:
ORDER

1. This is a revision petition preferred by the petitioner-defendant against the order of the learned Principal Subordinate judge, Bangalore, dismissing his application, I.A. No. VI, filed under Order 6, Rule 17, C.P.C. praying for permission to amend his written statement in O.S. No. 159/ 52-53.

2. The facts that have given rise to this petition are briefly as follows:

3. The petitioner is the defendant and the respondent is the plaintiff in the lower Court. Plaintiff's suit was for recovery of arrears of rent and eviction of the defendant from the suit premises on the allegation that the defendant is a tenant. The defendant, while admitting his being in possession of the suit premises, has contended that he is not a tenant under the plaintiff but under some other person. Later on, the defendant filed an application as per I.A. No. VI praying for permission to amend his written statement by adding a new plea that he is not in possession of the premises since 10-7-1051 and that one Channiah is in possession thereof. The plaintiff opposed that application, and the learned Subordinate Judge dismissed the same on the ground that the amendment sought for was inconsistent with the case as put forth by the defendant previously and that the application had not been made bona fide.

It is against that order that this revision petition is filed.

4. The main point that arises for consideration is whether the learned Subordinate Judge was wrong in disallowing the amendment sought for by the defendant. Order 6, Rule 17, C.P.C. which deals with amendment of pleadings runs thus:

'The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.'

This rule provides for the amendment, of his own pleading at the instance of a party. As the rule itself makes it clear, leave to amend will generally be granted at any stage of the proceedings: but this rule is subjects to three conditions viz.

(1) that the amendment sought for does not change the character of the suit or the nature of the defence;

(2) that no prejudice will be caused to the opposite side which cannot be compensated by awarding costs; and

(3) that the application has been made bona fide. Now, we shall examine whether these conditions have been fulfilled.

5. What the defendant wants is that he maybe allowed to introduce a new plea to the effectthat he has not been in possession of the suitpremises since 10-7-1951 i.e, from a period evenprior to the date of suit, The contention urgedon the side of the plaintiff, that the amendmentsought for has the effect of changing the natureof the defence as originally put forth by the defendant, appeal's to have much force. In the original written statement filed by the defendant,he has admitted that he has been in possession ofthe suit premises as a tenant, and his contentionis that he is not a tenant under the plaintiff butunder some one else. Thus, it is clear that theproposed amendment, if allowed, would changethe nature of the defence as originally put forward by the defendant; for the amendment allowed must be such as is either raised in thepleadings or is consistent with the case as originally laid. The object of Order 6, Rule 17, C.P.C. isto allow amendment for the purpose of determining the real questions in dispute between the parties. The real issue between the parties, according to the pleadings, would be whether the defendant is a tenant of the plaintiff or not. The amendment sought for does not in any way help insolving this question. On the other hand, itwill, if allowed, enable the defendant to raise anew plea which will have the result of abandoningthe case put forward by him earlier. I am ofopinion that there will be a complete change offront in the defence put forth by the defendantat the first instance. Therefore I am inclined tothe view that the amendment sought for wasrightly refused by the lower Court.

6. I am also of opinion that the petitioner is wanting in bona fides. His conduct in having applied for this amendment which will have the effect of abandoning his original defence itself is sufficient to show that there are mala fides on his part. In this connection, it has also to be remembered that a Receiver was appointed at the instance of the plaintiff for collection of the rents, and the defendant appealed against that order, and that in the appellate Court the defendant agreed to deposit in Court rent at the rate of Rs. 125/-per month pending disposal of the suit, which order admittedly the defendant has not carried out. This is again inconsistent with the amendment sought for, for introducing a new plea that he has not been in possession of the suit property. As can be gathered from the order of the lower Court, the amendment; has been applied for mala fide with intent to harass the plaintiff and protract the proceedings. No doubt, there are cases where an amendment which is inconsistent with the case as originally put forth has been allowed, and will be allowed, but each case has to be judged on its own merits, and generally such an amendment would be refused where the application is not made bona fide. In the present case, circumstances do not exist as to warrant allowing of such an amendment.

7. The learned Counsel for the plaintiff contended that no revision lies from an order allowing or refusing to allow an amendment of a pleading under Order 6, Rule 17. C. P. C. In support) of this contention, he cited the decisions reported in --'Mt. Suraj Pali v. Arya Pretinidhi Sabha : AIR1936All686 , and -- 'Purshotam Lalji v. Hara Narayan Dass', AIR 1941 Oudh 87 (B). No doubt, it is held in both the cases that no revision lies from an order allowing or refusing to allow an amendment of a 'pleading under Order 6, Rule 17, C.P.C. The High Court of Nagpur has, in the case reported in -- 'Mangllal Nandram v. Zamsingh Ghagu', AIR 1941 Nag 289 (C), taken a contrary view. There does not appear to be any decision of this Court directly on the point. But the practice in this Court has all along been to entertain revision petitions arising out of an order under Order 6, Rule 17, C.P.C. If instances are wanted, the' cases reported in '30 Mys. C.C. R. 37 (D)',;. '33 Mys C.C.R. 350 (E)',; 37 Mys H.C.R. 519 (F)', and '39 Mys. H.C.B. 332 (G)', may be perused. These are cases where revision petitions against such orders have been admitted. I therefore hold that a revision lies from an order allowing or refusing to allow an amendment of a pleading.

8. In the result, this revision petition fails and the same stands dismissed with costs, Advocate's fee Rs 25/-.

9. Revision dismissed.


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