RIYAZ AHMAD V. KULBHUSHAN AND OTHERS

CMPMO/109/2018

AI Insights

The case involves an eviction dispute under the Himachal Pradesh Urban Rent Control Act, 1987, where the landlord sought to evict the tenants on grounds including personal bonafide requirement, sub-letting, arrears of rent, and the need for reconstruction of an 80-year-old building. During the proceedings, the landlord filed applications to amend the eviction petition and introduce additional documents, which were initially allowed by the Rent Controller. The tenants appealed these decisions, but the Appellate Authority upheld the Rent Controller's decisions, leading to the current petition in the High Court. The High Court, after examining the procedural and substantive aspects of the amendments, upheld the Rent Controller's decision, emphasizing the necessity of the amendments for a complete adjudication of the case.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 670432 (HC-HIMACHAL_PRADESH)
• Appeal Type: High Court cases
• Pronouncement Date: 30-05-2025
• Assessment Year: misc
• Other Referred Cases: Salem Advocate Bar Association T.N. Vs. Union of India, Ajendraprasadji N. Pandey and Another Vs. Swami Keshavprakeshdasji N. and Others, Vidyabai and Others vs. Padmalatha and Another, M. Revanna Vs. Anjanamma (dead) by Legal Representatives and Others, Basavaraj Vs. Indira and others, Dinesh Goyal @ Pappu Vs. Suman Agarwal (Bindal) & Others
• Laws Referred To: Himachal Pradesh Urban Rent Control Act, 1987, Code of Civil Procedure
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: RUPINDER SINGH
• Assessee Lawyers: ASHOK TYAGI
• Keywords: Amendment of petition; Arrears of Rent; Eviction; Jurisdictional Error; Sub-letting; Personal bonafide requirement; Reconstruction
• Section: 6; 7; 14; 17; 24

Judgement Text

" IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. : 109 of 2018 Reserved on: 16.05.2025 Decided on : 30.05.2025 Riyaz Ahmad (deceased) through his LRs. ….Petitioner. Versus Kulbhushan & Others ...Respondents Coram Hon’ble Mr. Justice Satyen Vaidya, Judge Whether approved for reporting? Yes For the petitioner : Mr. Ashok K. Tyagi, Advocate. For the respondents: Mr. Rupinder Singh, Advocate, for respondent No.1. Satyen Vaidya, Judge By way of instant petition, petitioner has assailed order dated 20.02.2018, passed by learned District Judge Sirmour at Nahan, H.P. (exercising powers of Appellate Authority under Himachal Pradesh Urban Rent Control Act, 1987) in Civil Misc. Rent Appeal No.15-RA/14 of 2017. 2. Respondent herein (hereinafter referred to as the 'landlord') has filed a petition under Section 14 of the Himachal Pradesh Urban Rent Control Act,1987 (for short the 'Act') against 2 Neutral Citation No. ( 2025:HHC:16785 ) the petitioner and proforma respondents herein (hereinafter referred to as the 'tenants'), which is pending on the files of learned Rent Controller-1, Nahan, as Rent Petition No.10-2 of 2014. 3. The grounds of eviction, as pleaded by the landlord, are the personal bonafide requirement of the landlord; sub-letting; arrears of rent and lastly, the requirement of premises for reconstruction as it has become unfit and unsafe for human habilitation being an 80 years old building. 4. The tenants are contesting the petition. 5. During the pendency of the eviction petition, landlord filed two separate applications under Order 7 Rule 14 and under Order 6 Rule 17 of the Code of Civil Procedure (for short the 'Code'). By way of first application, the landlord sought leave of the learned Rent Controller to place on record certain additional documents and by way of the other, landlord prayed to amend the petition. The averments that the landlord was not occupying any premises in the urban area concerned and he had not vacated any other similar premises without sufficient cause within five years were sought to be incorporated. In addition, it was sought to be pleaded that the landlord was owner of another premises which was in the tenancy of one Sri Chand. 3 Neutral Citation No. ( 2025:HHC:16785 ) 6. Learned Rent Controller vide separate orders dated 30.08.2017, allowed both the applications. 7. The tenants assailed both the orders by filing a single appeal under Section 24 of the Act, before learned Appellate Authority Sirmour at Nahan. The appeal of tenants came to be decided by learned Appellate Authority vide impugned order. 8. Though, the learned Appellate Authority has held that the appeal against the orders passed by learned Rent Controller on applications under Order 7 Rule 14 and under Order 6 Rule 17 of the Code, was not maintainable, yet, the said authority proceeded to examine the merits of the orders passed by learned Rent Controller and held said orders to be legal and sustainable in the eyes of law. Accordingly, learned Appellate Authority affirmed the orders impugned before it by the tenants. 9. I have heard learned counsel for the parties and have also gone through the records of the case carefully. 10. The impugned order passed by learned Appellate Authority Sirmour at Nahan, is liable to be set aside on the sole ground that once the said authority had held the appeal as not maintainable, it could not exercise the jurisdiction as an Appellate Authority under the Act. The consequence will be that the tenants will have to separately assail the orders dated 30.08.2017, 4 Neutral Citation No. ( 2025:HHC:16785 ) passed by learned Rent Controller on applications under Order 7 Rule 14 and under Order 6 Rule 17 of the Code in accordance with law. The matter is already pending since 2014 and in order to cut short the procedural delays, I am of the view that the interest of justice shall be served by examining the correctness and legality of the aforesaid order passed by learned Rent Controller in the instant petition itself. 11. Learned counsel for the tenants has fairly conceded that he will not press his challenge against the order passed by learned Rent Controller on application under Order 7 Rule 14 of the Code. In such circumstances, the said order is affirmed. 12. As regards, the order passed by learned Rent Controller in application under Order 6 Rule 17 of the Code, learned counsel for the tenants has contended that the said order suffers from jurisdictional error. According to him, learned Rent Controller had allowed the amendment at a stage when the trial of the case had already begun and the landlord had failed to plead and establish his inability to seek the amendment before commencement of trial despite exercise of due diligence. Learned counsel made reference to the proviso appended to the Order 6 Rule 17 of the Code. 13. Perusal of impugned order reveals that learned Rent Controller had noticed the objections of tenants which included an 5 Neutral Citation No. ( 2025:HHC:16785 ) objection that the application for amendment had been filed at the fag end of the case when it was fixed for final arguments. The tenants had also made an averment that had the landlord exercised due diligence, the plea proposed by way of amendment could have been raised in the original petition. 14. Learned Rent Controller has allowed the application for amendment, primarily, on the ground that since the mandatory pleadings were missing in the petition, it was bound to fail and thus, such pleadings and its allowance would not cause any prejudice to the other party. Learned Rent Controller held that the fact sought to be incorporated in the petition, otherwise also, could have been brought on record by the parties by leading evidence. 15. Thus, learned Rent Controller did not consider the application for amendment in the context of proviso added to Order 6 Rule 17 of the Code. Notwithstanding such omission, the impugned order, in my considered view, needs no interference for the reasons detailed hereafter. 16. Indisputably, application for amendment was filed by defendant when the plaintiff had already closed his evidence in affirmative and case was fixed for the evidence of defendant. The application, thus, was filed after commencement of trial bringing the rigors of proviso to Order 6 Rule 17 of the Code into play. 6 Neutral Citation No. ( 2025:HHC:16785 ) 17. In Salem Advocate Bar Association T.N. Vs. Union of India, 2005) 6 SCC 344, the Hon’ble Supreme Court held as under: “26. Order 6 Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision.” 18. In Ajendraprasadji N. Pandey and Another Vs. Swami Keshavprakeshdasji N. and Others (2006) 12 SCC 1, the scope and applicability of proviso to Order 6 Rule 17 of the Code has been explained as under: “43. Under the proviso no application for amendment shall be allowed after the trial has commenced, unless inspite of due diligence, the matter could not be raised before the commencement of trial. It is submitted, that after 7 Neutral Citation No. ( 2025:HHC:16785 ) the trial of the case has commenced, no application of pleading shall be allowed unless the above requirement is satisfied. The amended Order VI Rule 17 was due to the recommendation of the Law Commission since Order 17 as it existed prior to the amendment was invoked by parties interested in delaying the trial. That to shorten the litigation and speed up disposal of suits, amendment was made by the Amending Act, 1999, deleting Rule 17 from the Code. This evoked much controversy/hesitation all over the country and also leading to boycott of Courts and, therefore, by Civil Procedure Code (Amendment} Act, 2002, provision has been restored by recognizing the power of the Court to grant amendment, however, with certain limitation which is contained in the new proviso added to the Rule. The details furnished below will go to show as to how the facts of the present case show that the matters which are sought to be raised by way of amendment by the appellants were well within their knowledge on their Court case, and manifests the absence of due diligence on the part of the appellants disentitling them to relief. 44 to 56 xx xx xx 57. It is submitted that the date of settlement of issues is the date of commencement of trial. [Kailash vs. Nankhu & Ors. (supra)] Either treating the date of settlement of issues as date of commencement of trial or treating the filing of affidavit which is treated as examination in chief as date of commencement of trial, the matter will fall under proviso to order 6 Rule 17 CPC. The 8 Neutral Citation No. ( 2025:HHC:16785 ) defendant has, therefore, to prove that in spite of due diligence, he could not have raised the matter before the commencement of trial. We have already referred to the dates and events very elaborately mentioned in the counter affidavit which proves lack of due diligence on the part of the defendant Nos. 1 and 2 (appellants). 58 & 59 xx xx 60. The above averment, in our opinion, does not satisfy the requirement of Order VI Rule 17 without giving the particulars which would satisfy the requirement of law that the matters now sought to be introduced by the amendment could not have been raised earlier in respect of due diligence. As held by this Court in Kailash vs. Nankhu & Ors. (supra), the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence.” 19. In Vidyabai and Others vs. Padmalatha and Another, (2009) 2 SCC 409, the issue as to scope of proviso to Order 6 Rule 17 of the Code has been explained as under: “19. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order VI, Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional 9 Neutral Citation No. ( 2025:HHC:16785 ) fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint.” 20. In M. Revanna Vs. Anjanamma (dead) by Legal Representatives and Others, (2019) 4 SCC 332, the Hon’ble Supreme Court has held as under: “7. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order 6 Rule 17 of the CPC virtually prevents an application for amendment of pleadings from being allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the Court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money.” 10 Neutral Citation No. ( 2025:HHC:16785 ) 21. In Basavaraj Vs. Indira and others, (2024) 3 SC 705 again the legal position has been explored as under: “10. The Proviso to Order 6 Rule 17 CPC provides that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. In the case in hand, this is not even the pleaded case of respondents No. 1 and 2 before the Trial Court in the application for amendment that due diligence was there at the time of filing of the suit in not seeking relief prayed for by way of amendment. All what was pleaded was oversight. The same cannot be accepted as a ground to allow any amendment in the pleadings at the fag end of the trial especially when admittedly the facts were in knowledge of the respondents No. 1 and 2/plaintiffs.” 22. Thus, from the above exposition of law, the only inference is that after commencement of trial in a suit, the amendment can only be allowed in the pleadings, in case the seeker of the amendment established that he was prevented by sufficient reasons from seeking amendment before commencement of trial. 11 Neutral Citation No. ( 2025:HHC:16785 ) 23. However, in Dinesh Goyal @ Pappu Vs. Suman Agarwal (Bindal) & Others, 2024 SCC Online SC 2615, Hon’ble Supreme Court has taken a different view as under: “13. By way of the amendment, what is sought to be done is, to question the validity of the Will, on the basis of which, the defendant sought to have the suit dismissed, while also expanding the scope of adjudication of the suit to include movable property. It has to be then, demonstrated that – (a) determination of the genuineness of the Will is the necessary course of action in determining the issues inter se the parties; and (b) given the finding of the court below that the application was presented post the commencement of the trial, it could not have been, despite due diligence, presented prior to such commencement. 14. Be that as it may, the overarching Rule is that a liberal approach is to be adopted in consideration of such applications. [See also: Sanjeev Builders (supra); Rakesh Kumar Agarwal v. Rajmala Exports Pvt. Ltd.8; Usha Balasaheb Swami & Ors. v. Kiran Appaso Swami & Ors.9; B.K. Narayana Pillai v. Parmeswaran Pillai & Anr.10]. 15. In our considered view, the two aspects required to be demonstrated in accordance with the statutory language in the present facts, do not stand on the same footing. The first issue will necessarily have to weigh over the second.” 12 Neutral Citation No. ( 2025:HHC:16785 ) 24. Thus, it has been held that in case the amendment sought is necessary for adjudication of real matter in controversy between the parties, such factor will over-weigh the delay in seeking amendment or the lack of diligence in this regard by the party seeking the amendment. 25. The nature of plea sought to be raised by landlord by way of amendment was such which was necessary for adjudication of the real matter in controversy between the parties completely and effectively. Simultaneously, there is no hesitation to hold that the landlord had failed to show that he could not seek amendment before commencement of trial despite due diligence. 26. In M/s A.P. Electrical Equipment Corporation Vs. Tehsildar, 2025 SCC online SC 447, Hon’ble Supreme Court has held as under: “35. If two decisions of this Court appear inconsistent with each other, the High Courts are not to follow one and overlook the other, but should try to reconcile and respect them both and the only way to do so is to adopt the wise suggestion of Lord Halsbury given in Quinn v. Leathern, [1901] A.C. 495 and reiterated by the Privy Council in Punjab Cooperative Bank Ltd. v. Commr. of Income Tax, Lahore AIR 1940 PC 230: “…… every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions, which may be found there, are not intended to be expositions of the whole law, but governed or qualified by the particular facts of 13 Neutral Citation No. ( 2025:HHC:16785 ) the case in which such expressions are to be found.” and follow that decision whose facts appear more in accord with those of the case at hand.” 27. In my considered view the amendment sought by the landlord is necessary for complete and effective adjudication of the real controversy between the parties. The facts sought to be incorporated in the petition by way of amendment are jurisdictional facts, without which the petition is liable to fail on technical grounds only. In the facts of this case the bonafide of the landlord also cannot be doubted for the reason that he being layman was not expected to be familiar with intricacies of law. 28. Keeping in view the entirety of facts and circumstances, I am of the view that the case in hand is nearer to the facts in Dinesh Goyal’s case (supra) and for such reason, I prefer to follow the said precedent. 29. In result, the instant petition is dismissed. The order dated 30.08.2017, passed by learned Rent Controller-I, Sirmour, District at Nahan, H.P. in Rent Petition No. 10-2 of 2014, allowing the application of landlord under Order 6 Rule 17 of the Code, is upheld and affirmed. 14 Neutral Citation No. ( 2025:HHC:16785 ) 30. The petition is, accordingly, disposed of, so also the pending miscellaneous application(s), if any. ( Satyen Vaidya ) Judge 30th May, 2025 (sushma) "