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Kashi Nath Tewari Vs. Mangroo Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 1045 of 1976
Judge
Reported inAIR1977All472
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantKashi Nath Tewari
RespondentMangroo Lal
Appellant AdvocateN.S. Chaudhary, Adv.
Respondent AdvocateN.D. Keshari, Adv.
DispositionPetition dismissed
Excerpt:
.....- application for withdrawal of rejection order - objections by defendants - application for amendment allowed - no formal order passed for recalling or rejection order - held, omission of formal order an irregularity and order implies cancellation of rejection order. - - subsequently, an application was moved for recalling the aforesaid order dated 3rd january, 1976. counsel for the defendant put in objections to the application for recalling the order as well as to the amendment application. the trial court, therefore, could recall the same and, in my opinion, taking into consideration the aforesaid facts and circumstances, it should be held that the said court was satisfied that the earlier order passed at the back of the plaintiff and his counsel should be recalled......before recalling the order dated 3rd january, 1976 whereby the amendment application had been earlier rejected. i do feel that there is some irregularity inasmuch as there is no formal order whereby the earlier order dated 3rd january, 1976 ought to have been recalled but. it does seem to me that this irregularity has nothing to do with the jurisdiction of the court and i do not think that it can even be described as a material irregularity. admittedly, on 6th march, 1976, 36-c was also taken up for consideration along with 30-c. as i stated earlier, 30-c is the amendment application and 36-c is the defendant's objection to 32-c, the latter was the plaintiff's application for recalling the order passed on 3rd january, 1976, dismissing the amendment application. therefore, it has to.....
Judgment:
ORDER

M.P. Mehrotra, J.

1. This revision arises out of proceedings for the amendment of the plaint.

2. In a suit between the landlord and the tenant, eviction was sought by the plaintiff and, according to the plaint allegations, the accommodation in question was a post-1950 construction. In 1972 the new U. P. Act XIII of 1972 came into operation and Section 39 has extended the benefit of the new Act to the tenants against whom suits for eviction were pending in respect of the buildings to which the old Act did not apply and which came to be covered, for the first time, by the new Act. Section 40 of the Act extends such benefit to the tenants of such buildings which have been brought under the regulation of the new Act for the first time during the pendency of appeals or revisions. The suit in question was filed in 1974 in the court of the Judge, Small Causes, Allahabad, In the plaint, it was alleged that the house was constructed in the year 1964. The plaintiff sought to amend the pleading to the effect that the construction of the house was started in 1964 and was completed in the year 1966. The application for amendment was rejected on 3rd January, 1976. Admittedly, the plaintiff's counsel was not present when the court rejected the application. Subsequently, an application was moved for recalling the aforesaid order dated 3rd January, 1976. Counsel for the defendant put in objections to the application for recalling the order as well as to the amendment application. On 6th March, 1976, the application for amendment of the plaint (30-C) and the defendant's objection (36-C) to the plaintiff's application dated 22nd January, 1976 (32-C) were taken up and the counsel for the parties were heard. Orders were reserved for 11th March, 1976. On 11th March, 1976, the trial court allowed the amendment application. The defendant felt aggrieved and filed a revision before the lower revisional court but the same was dismissed. Now the defendant has come up in the instant revision and, in support thereof. I have heard Sri. N. S. Chaudhary, learned counsel for the defendant-applicant. Sri N. D. Kesri, learned counsel for the plaintiff-opposite-party, has made his submissions in opposition.

3. Shri Chaudhary has contended that the trial court had no jurisdiction to allow the amendment application before recalling the order dated 3rd January, 1976 whereby the amendment application had been earlier rejected. I do feel that there is some Irregularity inasmuch as there is no formal order whereby the earlier order dated 3rd January, 1976 ought to have been recalled but. it does seem to me that this irregularity has nothing to do with the jurisdiction of the court and I do not think that it can even be described as a material irregularity. Admittedly, on 6th March, 1976, 36-C was also taken up for consideration along with 30-C. As I stated earlier, 30-C is the amendment application and 36-C is the defendant's objection to 32-C, The latter was the plaintiff's application for recalling the order passed on 3rd January, 1976, dismissing the amendment application. Therefore, it has to be held that the trial court did hear the defendant on the question as to whether tine earlier order dated 3rd January, 1976, should or should not be recalled and, only after hearing the defendant on the said question, the trial court allowed the amendment application (30-C), By implication, therefore, it should be held that the trial court rejected the contention of the defendant that the earlier order dated 3rd January, 1976, should not be recalled, The mere fact that in so many words the trial court has not said that 36-C stands rejected cannot be a ground for coming to a different conclusion because, if the trial court had accepted the contention raised in 36-C then there was no point in proceeding to decide 30-C, namely, the amendment application. It may be observed that the earlier amendment application had been rejected on 3rd January, 1976, in the absence of the plaintiff's counsel and in the application for recalling the order dated 22nd January, 1976, the plaintiff's counsel had stated that he was under a bona fide impression that his application was to be taken up on 22nd January, 1976, and, under the impression, he did not appear on 3rd January, 1976. The order dated 3rd January, 1976, was admittedly passed in the absence of the plaintiff and his counsel. The trial court, therefore, could recall the same and, in my opinion, taking into consideration the aforesaid facts and circumstances, it should be held that the said court was satisfied that the earlier order passed at the back of the plaintiff and his counsel should be recalled. The trial court allowed the amendment application as it thought it fit that the parties should be allowed to go to the trial on the question of the date of construction of the house in dispute Needless to say that allowing the amendment does not mean that the plaintiff's contention has found acceptance. The court has merely allowed the contending points of view to be canvassed after the necessary amendment of the pleadings.

4. Sri N, Section Chaudhari has next contended that the defendant is entitled to the benefit of Section 39 read with Section 40 of the Act inasmuch as he has complied with the provisions of the said sections during the pendency of this revision. It is not necessary to pass any verdict on the said contention. It will be for the trial court to examine this contention and to deal with the same on its merits. Though it is not necessary, still, I make it clear that the amendment allowed to the plaintiff does not, in any manner, debar the defendant from contending that he is entitled to the benefit of the provisions contained in Sections 39 and 40 of the Act. Whether, in fact or in law, the defendant can avail of the benefit of the said provisions has to be judged by the trial court but I do not think that the mere fact that the amendment in question has been allowed, in any way, debars the defendant from seeking the aid of the said provisions provided in law he is entitled to the same.

5. The revision is accordingly dismissed but, in the circumstances, there will be no order as to costs. The stay order, if any, shall stand automatically vacated and the lower court record is directed to be went down immediately and without any delay whatsoever.


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