1. Heard Sri Mohit Kumar Shukla for the defendant-revisionist, Sri Rahul Pandey for the plaintiff-respondent and perused the record.
2. Considering the short legal controversy involved in the revision, learned counsel for the plaintiff-respondent, who has filed caveat application, does not pray for time to file counter affidavit and has agreed for final disposal of the revision at the fresh stage itself so as to avoid further delay in the proceeding.
3. The instant revision has been filed against an order dated 3rd March, 2016, passed by Additional District Judge/S.C.C. Court, Court No. 12, Ghaziabad in SCC suit no.21 of 2010, by which amendment application 37 Ga filed by the defendant-revisionist seeking addition of certain classificatory pleas in the written statement, has been rejected by the Court below.
4. The submission of learned counsel for the defendant-revisionist is that the amendment proposed does not change the nature of the case and it is only classificatory in nature, which is necessary for deciding the real controversy between the parties and, therefore, the finding returned by the Court below that the amendment changes the nature of the case taken by the defendant is erroneous in law. The second submission of learned counsel for the revisionist is that while considering the amendment application the Court is not required to test the merit of the plea because that is to be decided only during the course of trial on the basis of the weight of evidence led before the Court. At this stage, the Court is only required to consider whether the amendment is necessary to decide the real controversy in issue between the parties or not and if the amendment is classificatory in nature, ordinarily the Court should not refuse such amendment because that helps the Court in deciding the real issue between the parties.
5. Learned counsel for the plaintiff-respondent submitted that in this case the amendment was barred by the proviso to Order 6, Rule 17 of the Code of Civil Procedure as the amendment has been sought after commencement of the trial. He further submitted that the plea which is being sought to be raised in the written statement has no legs to stand on merit. However, it is not denied by the plaintiff respondent that the amendment sought in the written statement is classificatory in nature and it only supplements the plea which has already been taken in the written statement by the defendant-revisionist.
6. I have given thoughtful consideration to the submissions of learned counsel for the parties and have also gone through the record.
7. So far as the contention of learned counsel for the plaintiff-respondent that the amendment is barred by the proviso to Order 6, Rule 17 of the Code of Civil Procedure is concerned, it does not appear that any such ground has been taken by the Court below while rejecting the amendment application and, therefore, it would not be appropriate for this Court to express any view as to whether the amendment application is hit by the proviso to Order 6, Rule 17 of the Code of Civil Procedure or not.
8. The contention of learned counsel for the defendant-revisionist that the amendment was classificatory in nature and, therefore, it does not change the nature of the case taken by the defendant has substance inasmuch as in paragraphs 2 to 4 of the written statement the defendant has taken the plea that after the rent agreement, the plaintiff had taken sale consideration from the defendant for sale of the premises in dispute in favour of the defendant and only because, subsequently, the property rates had gone up, the plaintiff resile from his commitment. In paragraph 4 it is also stated that the suit is not maintainable. In paragraph 5, which is actually continuation of paragraph 4, it was stated that the plaintiff sought to return the sale consideration through cheque of Rs.13,00,000/- which got dishonoured. By the amendment application the plea, which has already been taken in the written statement, has been elaborated in the proposed amendment by seeking addition of paragraph 3 A in the written statement so as to explain the understanding between the plaintiff and defendant after dishonour of the cheque, which suggested that there relationship of landlord and tenant stood snapped by subsequent development. The other amendments sought are consequential to the addition of paragraph 3 A and are required for correcting the paragraphs numbering. Accordingly, it cannot be said that the proposed amendment entirely changes the nature of the plea taken by the defendant. Even otherwise, there is not much discussion on that aspect by the Court below, therefore, it is left open for the Court to decide the said aspect again.
9. So far as the merit of the stand taken by the defendant in the amendment application is concerned, suffice it to say that it is well settled principle in law that at the stage of considering the prayer for amendment, the merit of the plea is not to be considered because the weight of the plea can best be tested when there is evidence on record in support of the plea.
10. In view of the above, the reasons which have been recorded by the Court below for rejecting the amendment application are not legally sustainable and, therefore, the order passed by the Court below rejecting the amendment application is liable to be set aside and the application requires fresh con
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sideration in the light of the observations made herein above. 11. The revision is accordingly allowed. The order dated 3rd March, 2016 passed by the Court below is set aside. The Court below shall pass a fresh order on the amendment application 37 Ga, in accordance with law, and in the light of the observation made herein above. It is made clear that while considering the amendment application, the Court below will also take into consideration whether the amendment is barred by proviso to Order 6, Rule 17 of the Code of Civil Procedure or not. 12. There is no order as to costs.