Sita Ram Talwar And Another v. Jai Dev Sharma

Pritam Singh Safeer, J.:— This judgment will dispose of S.A.O No. 4 of 1971 and the reference made therein by my brother B.C Misra, J. before whom the appeal came up for hearing on 30th March, 1971.

2. An application was filed by the respondent Shri Jai Dev Sharma under section 14 of the Delhi Rent Control Act, 1958 (hereinafter called “the Act”) in paragraph 18 whereof he urged the following three grounds for seeking the eviction of the present appellants:—

“ (1) That the premises referred to in para No. 8 of the petition were let out to respondent No. 1 for residential purposes and neither he nor any members of his family are residing in the tenanted premises for more than six months.

(2) That respondent No. 1 has acquired vacant possession of a residential accommodation in New Delhi and has shifted to that place.

(3) That respondent No. 1 has without the previous written consent and approval of the petitioner sub-let, assigned or parted with the possession of the tenanted premises to respondent No. 2 since 1-9-1967.”

After the Additional Controller had recorded the parties' evidence, the landlord, made an application under order 6, rule 17 of the Civil Procedure Code seeking the amendment of his petition for eviction. The application bearing the date 12th April, 1970, was filed on the 14th of April, 1970. After the proposed amendment ground No. 2 was to read:—

“That the respondent No. 1 has acquired vacant possession of a residential accommodation in Kathmandu and New Delhi.”

The word “Kathmandu” was sought to be introduced before the words “New Delhi” but last words contained in ground No. 2 i.e “and has shifted to that place” were sought to be omitted. After receiving a reply from the appellants, the Additional Controller having heard the parties, by his order dated the 28th of April 1970, allowed the amendment on payment of Rs. 75/- as costs. The appeal filed against that order was dismissed by the Rent Control Tribunal on 5th December, 1970.

The first contention raised before the Rent Control Tribunal on behalf of the respondent was that it had no jurisdiction to hear the appeal against an order which was merely procedural and as such unappealable under section 38 of the Act. Relying on a judgment dated the 26th of May, 1970, by which S. Rangarajan, J. had disposed of Civil Miscellaneous (Main) 50 of 1968, (Lal Chand v. Dalip Singh) (1) it was urged that the order allowing the amendment did not affect the rights or liabilities of the parties.

After referring to Central Bank of India Limited v. Gokal Chand, A.I.R 1967 S.C 799 (2), Rangarajan, J. had held that unless “any” order of the Controller affected any right or liability of the parties to the litigation it was not appealable.

3. The appellants relied on the decision by Deshpande, J. in Kishen Chand v. Ramesh Chander and others, 1969 Rent Control Journal 839 (3) and contended that an appeal did lie against an order allowing amendment of the pleadings.

The Rent Control Tribunal found that the judgment of Rangarajan, J. was subsequent to that made by Deshpande, J. and following the same it was held that no appeal was competent against the order made by the Additional Controller on the 28th of April, 1970. After analysing the case on merits the Rent Control Tribunal found no substance in the appeal and dismissed the same.

4. Aggrieved by the order made by the Tribunal, the appellants moved this Court under section 39 of the Act and when the appeal came up before B.C Misra, J. on 30th March, 1971, he was pleased to notice that the judgment of Deshpande, J. had not been cited before Rangarajan, J. and that the question was of such importance that it deserved to be settled by a larger Bench. The reference is confined to the determination as to whether an appeal would lie under section 38 of the Act to the Rent Control Tribunal against an order allowing an amendment of the pleadings within the scope of order 6, rule 17 of the Civil Procedure Code.

5. The application made by the respondent on the 14th of April, 1970, was preferred only under order 6, rule 17 of the Civil Procedure Code (hereinafter called “the Code”) and no other provision was invoked.

6. While hearing the reference we have decided to dispose of the appeal.

7. The grounds on which the respondent had originally sought the eviction of the appellants have been reproduced in-extenso. Out of them the one in respect whereof an amendment was sought under order 6, rule 17 of the Civil Procedure Code was urged within the ambit of clause (h) contained in the proviso to sub-section (1) of section 14 of the Act. That clause is:—

“that the tenant has, whether before or after the commencement of this Act, built, acquired vacant possession of, or been allotted, a residence.”

We may now notice order 6, rule 17 of the Code:—

“17. 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.”

The provision can be invoked only by a party to the proceedings in order to seek alteration or amendment in its pleading. All amendments, which may be necessary for the purpose of determining the real questions in controversy between the parties, are ordinarily to be allowed. The purpose of the rule is that where the real questions in controversy between the parties are already apparent from the pleadings, then such alteration or amendment may be permitted which may be necessary for achieving a final determination thereof. The amendment sought should be such, the allowing whereof would be necessary for bringing out before the court the real and pertinent aspects of the controversy in order to promote a final adjudication. It is intended that multifariousness be avoided.

8. While dealing with order 6, rule 17 of the Civil Procedure Code the Supreme Court in Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, A.I.R 1969 S.C 1267 (4), clearly laid down that the rules of procedure were intended to further the cause of administration of justice and a party was not to be refused the just relief to which it may be really entitled because of some mistake or negligence or inadvertence on its part. Order 6, rule 17 was held to be a mere rule of procedure.

Amendments are to be allowed to further the cause of administration of Justice and may not be allowed where it is shown that the pleas sought to be freshly introduced have been mala-fide held back and the permission to allow their introduction may lead to the impleading of a party which till then may have been a complete stranger to the litigation. An amendment may also not be allowed where any law would bar the relief which the amendment may aim at achieving. The courts will take into consideration the valuable rights which the bar of limitation may have given to the opposite party and though that may not be fetter on the exercise of the power provided by order 6, rule 17 of the Civil Procedure Code, the amendment may be refused.

9. In the instant case a plea had initially been raised by Shri Jai Dev Sharma within section 14 (1) (h) of the Act. Adding of the word “Kathmandu” before the words “New Delhi” was only intended to obtain a final determination of the controversy already subsisting between the parties.

10. We may now consider the reference which is concerned with the nature and the appealability under section 38 of the Act of the order made under order 6, rule 17 of the Code. That provision would not allow within its ambit any right or liability of any party to be affected or determined. No court can pass an order within order 6, rule 17 of the Civil Procedure Code determining any right or liability of any party. The rule permits only the passing of an order allowing an alteration or amendment in the pleadings. Where a plaint is allowed to be amended, the defendant will be given the chance of filing a fresh written statement. Thereafter fresh issues may be added. The adding of issues would not be the effecting of any right or liability of the parties. The question is, would an appeal lie under section 38 of the Act against an order passed under order 6, rule 17 of the Code ?

The provision being in the Civil Procedure Code, it may first be examined in the light of the provisions contained therein.

Where no appeal lies against a plaint or a written statement as such, would an order consequenting an alteration or an amendment in them be appealable ? The authors of the Civil Procedure Code conscious of the scope of Order 6, rule 17, while examining it for the purpose of settling the terms of order 43, rule 1, did not make an order to be made under Order 6, rule 17 appealable. Under the Code an appeal could lie only against those orders which were expressly made appealable under section 104 and order 43, rule 1. A consideration of the last mentioned provision leads to the conclusion that one of the considerations for determining as to which orders would be appealable, was that only such orders be made appealable which would be immediately affecting the rights of the parties. An attachment of property or prohibition to sell it would immediately affect the rights of the parties concerned.

To me the scope of Order 6, rule 17 appears to be merely this that as a rule of procedure it regulates the alteration of amendment of pleadings. The proposed amendment or alteration may be connected with the subject-matter in controversy between the parties and may be allowed when found necessary for determining the real questions in controversy.

11. Turning to the Act we find that in terms of section 37 (2) therein the Controller is to follow the procedure of a court of Small Causes. That court subject to section 17 of the Provincial Small Cause Courts Act follows the procedure contained in the Civil Procedure Code. An order passed under Order 6, rule 17 by a court of Small Causes would never be appealable. The implication indicates that the order passed by the Controller under that very provision would not by the mere force of section 38 of Act 59 of 1958 become appealable. Section 38 having been interpreted by the Supreme Court in A.I.R 1967 S.C 799, it was settled that only such orders would be appealable thereunder which might be affecting the rights or liabilities of a party to the litigation. The party which obtains an order under Order 6, rule 17 merely alters or amends its pleading. The order causes an alteration or amendment in that party's pleading leaving it open to the other party to controvert the averments so introduced. By itself an order allowing an alteration or amendments cannot affect any right or liability. It is not in the nature of granting any interim relief. The only relief it grants is to alter or amend a pleading. The pleading — a plaint or a written statement — then becomes what it originally should have been.

12. The case with which Deshpande, J. was concerned, was very peculiar. In that case the landlord had made an application for eviction against his tenant and the alleged four sub-tenants. Apart from the ground, of sub-letting it was urged that the tenant had been in arrears of rent for a long time. It was on the 21st of November, 1966, that the Controller had passed an order under section 15 (1) of the Act on account of non-compliance with which on the 5th of June, 1968, the defence was ordered to be struck out under section 15 (7) of the Act. From the dates contained in the reported judgment it seems that two days earlier to that order, i.e on 3rd of June, 1968, the tenant had made an application for amendment of his written statement by adding two additional pleas. Two of the sub-tenants, who were also respondents to the eviction petition filed similar applications seeking to introduce similar amendments. The Controller allowed the applications filed for amending the written statements. The landlord appealed against the said order but the Rent Control Tribunal, while allowing the appeal, set aside the order of the Rent Controller only to the extent to which it allowed the amendments of the written statements filed by the sub-tenants. The order made by the Rent Control Tribunal did not deal with the amendments allowed to be made in the written statement filed by the tenant. On an application subsequently made by the landlord to the Rent Control Tribunal under section 151 of the code, the Tribunal recorded an order that the decision of the appeal covered also the case of the tenant. It was that order of the Rent Control Tribunal which was challenged through S.A.O No. 83 of 1969 before Deshpande, J. The learned Judge, as is visible from paragraph 5 of his judgment, framed four questions for determination. In paragraph 15 of the judgment while considering as to whether the order allowing the amendment was appealable or not, reference was made to Central Bank v. Gokul Chand, 1967 Delhi Law Times 1 (A.I.R 1967 S.C 799) (2). Our learned brother Deshpande, J. noticed that section 38 (1) of the Act provided for an appeal against every order of the Controller made under the Act. It was noticed that section 37 (2) conferred powers on the Controller in exercise whereof following the same procedure as a court of Small Causes, he could allow the amendment of a pleading.

The distinction as between the orders which may be merely procedural and those which, although being interlocutory, may be affecting the rights or liabilities of a party, was also noticed. What persuaded Deshpande, J. to the view which he expressed, can best be noticed from the observation made by him:—

“The order purporting to allow the so-called amendment of the written statement by the tenant, therefore, was neither a procedural order nor an interlocutory order. It had the effect of wiping out the order under section 15 (1) of the Act. * * *”

The Controller had by passing an order under section 15 (7) of the Act directed that the defence of the tenant be struck out. Even though the application for amendment had been preferred on the 3rd of June, 1968, once the defence had been struck out, there was no written statement which could have been amended. In paragraph 3 of his judgment Deshpande, J. noticed that the order of the Rent Controller directing the striking out of the defence under section 15 (7) of the Act had been confirmed by the Rent Control Tribunal by dismissing the appeal preferred against that order.

There was no existing written statement and order 6, rule 17 of the Code could not have been availed of.

In the other case Rangarajan, J., while disposing of Civil Miscellaneous (Main) 50 of 1968: (1) (supra) was dealing with an order made under order 6, rule 17 of the Code allowing an amendment of the written statement. In the light of the observations contained in A.I.R 1967 S.C 799 (2) (supra) he came to the conclusion:—

“In view of the said clear pronouncement it is not possible to contend that an appeal did lie to the Rent Control Tribunal from the order allowing the amendment. By the amendment being allowed, no right of the tenant, in this case, has been affected.

13. After considering every aspect, I am of the view that the scope of order 6, rule 17 of the Civil Procedure Code is such that if an order is to fall within its purview, it would only be a procedural order allowing or refusing an alteration or amendment in an existing pleading. Such an order would be outside the provision if it in any way affects or determines any right or liability of any party to the litigation. The scope of the said provision does not permit the court exercising its jurisdiction thereunder to determine any right or liability of any party. The court is given the power merely to allow or refuse the alteration or amendment of a pleading and that too at the instance of a party to the litigation. No order passed within the scope of order 6, rule 37 would, therefore, be an order determining any right or liability of any party to the litigation. Within the rule of law laid down by the Supreme Court in A.I.R 1967 S.C 799 (supra) every order made under the Act is not appealable under section 38 thereof. Only such orders made under the Act are appealable which may be affecting the rights and liabilities of the parties. The allowing of an alteration or amendment in a pleading would only enable the parties to promote the determination of the real questions in controversy. By itself it would not be determining or affecting their rights or liabilities.

Answering the reference, I hold that an order within the strict scope of Order 6, rule 17, and not travelling outside it, being merely procedural allowing alteration or amendment of the pleading, would not be appealable under section 38 of the Act. The provision does not create any vested right to obtain an amendment or alteration in the pleading. A party can only invoke the discretion of the court. Where an alteration or amendment in the pleading is refused and any prejudice is caused in the ultimate adjudication, then the grievance on account of such an order may be raised within the scope of section 105 of the Civil Procedure Code in an appeal against the final order or the decree. The order under Order 6, rule 17 will not by its own force and within its own scope affect any right or liability of the parties and its appealability is ruled out by a composite reading of section 104 and order 43, rule 1 of the Code. Where, however, the order, although purporting to have been passed on an application moved under Order 6, rule 17, moves outside the authority provided by that provision, its appealability will have to be determined in terms of the observations made by the Supreme Court in A.I.R 1967 S.C 799, while dealing with section 38 of the Act.

14. In an earlier part of the judgment it has been noticed that the application under order 6, rule 17 of the Civil Procedure Code, bearing the date 14th April, 1970, was moved to amend ground No. 2 contained in paragraph 18 of the application filed for obtaining ejectment. The word “Kathmandu” was sought to be introduced before the words “New Delhi”. We have considered the appeal on merits and we find no scope for interfering with the impugned order dated the 5th of December, 1970. While dismissing the appeal, we make no order as to costs.

B.C Misra, J. — I agree with the conclusion of my lord P.S Safeer, J. arrived at in his learned judgment that the present appeal must be dismissed and there is no ground to interfere with the impugned order.

Ordinarily, orders allowing amendment of the pleading do not determine any rights and liabilities of the parties and so would not be appealable as such. An order refusing amendment would again not constitute an appealable order. However, there are circumstances when an order allowing amendment may expressly or impliedly determine or affect the rights and liabilities of the parties substantially and in that case, it would be difficult to hold that the order is not appealable within the dictum laid down by the Supreme Court in Central Bank of India v. Gokal Chand, A.I.R 1967 Supreme Court 799 (2), where their lordships held that the expression “every order of the Controller” included a final as well as interlocutory order, but in order to be appealable, it must affect the rights and liabilities of the parties and should not be merely procedural by way of steps towards the final adjudication. It may be noted that their lordships of the Supreme Court have not assigned the test that the order must itself determine the rights, but they have laid down that it must affect the rights.

Under clause (15) of the Letters Patent of the Chartered High Courts, an appeal lies to the Division Bench from a judgment of a Single Judge. The question has often arisen as to whether an order allowing amendment amounts to judgment. In this connection, two different views may be noticed. One is Gaganmal Ramchand v. The Hongkong and Shanghai Banking Corporation, A.I.R 1950 Bombay 345 (5), following a previous decision of the same High Court in Sheshgiridas Shanbhag v. Sunderrao, A.I.R 1946 Bombay 361 (6) where the view was taken that an order allowing an amendment does not constitute judgment and is not appealable as it does not relate to the jurisdiction of the Court, but only to the mode of its exercise. The other view finds expression in a judgment of the High Court of Calcutta in M.B Sirkar and Sons v. Powell and Company A.I.R 1956 Calcutta 630 (7), where their lordships discussed the authority of the High Court of Bombay in Sheshgiridas Shanbhag's case (6) and they followed an earlier decision of the High Court of Calcutta in Upendra Narain Roy v. Janaki Nath Roy, A.I.R 1919 Calcutta 904 (8), and observed that it was contended that an order allowing an amendment of a plaint would not possibly be a judgment because by it no question regarding the merits of the case was decided between the parties, but the said proposition is not supported by the authorities, nor by reason, if this be taken as an absolute proposition; it is quite true that it an amendment merely allows the plaintiff to state a new cause of action or to ask a new relief or to include a new ground of relief, all that is done is that it is made possible for the plaintiff to raise certain further contentions in the suit, but it is not decided that those contentions are right and when an amendment is of that character, it may undoubtedly be said that by allowing it, the Court does no more than regulate the procedure applicable to the suit and does not decide any question which touches the merits of the controversy between the parties; there may, however, be other types of amendment by which a question of substance between the parties is directly or indirectly, but nevertheless, finally, so far as the suit is concerned, decided. Such case is where a new party is added or the defence of limitation is jeopardised; the effect of such amendment would unquestionably be that an order for amendment necessarily decides the vital question concerning the merits of the case and the rights of the parties within the meaning of the word ‘judgment’. The Division Bench further observed that if an amendment either affected the rights accrued to the other party or prejudiced him in any way, the order allowing it would be an order deciding the question touching the merits of the controversy as between the parties and will be appealable.

Therefore, it is not possible to lay down as a matter of law that an order passed under Order VI, Rule 17 of the Civil Procedure Code will under no circumstances be appealable under section 38 of the Rent Act. The instances where they would be appealable are indeed few, but they are real; for example (1) where a time-barred claim is by amendment permitted to be brought within limitation, thereby jeopardising the right of the respondent to plead the bar of limitation, (2) where an admission is contained in the pleading of which the opposite party takes an advantage, of which he is deprived by allowance of the amendment; (3) where a new party has been added and (4) where an entirely new cause of action has been substituted in place of the one pleaded and such orders, if passed, may be appealable. In these cases, the rights and liabilities of the parties are clearly affected. On the other hand, it will not be possible to treat as appealable orders allowing amendment the result of which is to bring out the existing matter in controversy more clearly, or corrections or misdescriptions or errors or additions of further particulars to the existing cause of action or addition of a new cause of action or claiming a new relief. Such matters are definitely procedural and do not affect the rights of the parties.

However the exceptions I have suggested in regard to the appealability of the order allowing amendment are of an academic nature and are not of much practical use in proceedings instituted before the Controller under the Delhi Rent Control Act. The reason is that there is no period of limitation prescribed for instituting petitions for eviction and so no vested right of the respondent is likely to be affected. Secondly the amendment by substitution of a new cause of action is seldom allowed in rent control proceedings and a party is ordinarily allowed to file a fresh petition. Same is true of the addition of a party; if the newly added party is a tenant in substitution of the old tenant, the amendment will ordinarily not be allowed, but if he is added as a sub-tenant for another person holding under or jointly with a tenant, the amendment cannot be said to affect the rights of the parties.

The scheme of the Rent Act is that the proceedings should be expeditiously concluded and an aggrieved party may on an appeal against the final order challenge the order allowing or disallowing the amendment passed at an intermediary stage and a second appeal lies to the High Court only on a substantial question of law. Under the circumstances, it would be safe to assume that the orders passed by the Controllers under the Rent Control Act allowing or disallowing amendment of the pleadings would be found as not affecting the rights and liabilities of the parties and will not be appealable, but as a matter of law the appealability would depend on the nature of each order passed in terms of the dictum laid down by the Supreme Court in Gokal Chand's case and our observations made herein.

With the aforesaid observations, I generally agree with the judgment of my lord P.S Safeer, J. As a result the appeal stands dismissed with no order as to costs.

Appeal dismissed.