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Jagmohan Malhotra v. Jai Kumar Mishra & Others - CIVIL REVISION No. 2 of 2005  RD-AH 340 (3 February 2005)
COURT NO. 40
CIVIL REVISION NO. 2 OF 2005
Jai Kumar Mishra and others.................................Opp. Parties.
Hon. S.N.Srivastava, J.
By means of the present revision, the applicant has impugned the order-dated 16.9.2004 passed by Addl. District Judge (Court no. 3) Moradabad in SCC Suit No. 8 of 2003 whereby amendment application 40 A of the plaintiff respondents was allowed on payment of Rs. 150/- as costs.
It would appear from the record that the plaintiff respondent instituted a SCC suit being suit no. 8 of 2003 praying for a decree of eviction of defendants 1 to 3 from the building known as Mishra Building situated at Station Road, Moradabad and for payment of rent of Rs. 1045.12 together with damages at the rate of Rs. 27,750.00 alongwith house tax and water tax. The applicant defendant entered appearance and filed written statement. During the pendency of the suit, an amendment application came to be filed by plaintiff seeking amendment by adding para 9 A in the plaint. The amendment application was sought to be dismissed as not pressed on ground that it suffered from some technical mistake. It would further appear that the plaintiff made another application attended with an affidavit the same day by which the self-same amendment was sought to be incorporated in the plaint averring therein that the amendment sought to be incorporated, was by way of alternative plea. An objection was filed by the defendant tenant but the court below allowed the amendment allowing cost of Rs.150/- alongwith the direction that the amendment maybe incorporated in the plaint within seven days.
Heard learned counsel for the parties. Sri M.A.Qadeer appearing for the applicant advanced three fold arguments; firstly that U.P. Act no. 13 of 1972 does not extend coverage to the building in question attended with further argument that by way of amendment by adding para 9 A in the plaint, the defendant cannot be extended the benefit flowing from section 20 (4) of the U.P. Act no. 13 of 1972 inasmuch as the plea christened as "alternative plea" has the complexion of contradictory plea which is not permissible in law. The second argument advanced by the learned counsel is that proviso to section 20 (4) of the U.P. Act no. 13 of 1972 cannot be called in aid in the present case as the expression "acquired/as acquired" connotes acquisition of any property during pendency of the case and as such, amendment application introducing the plea as alternative plea, being not permissible in law, cannot be sustained in law. The third argument advanced across the bar is that rejection of the amendment application which was dismissed as not pressed on ground of technical mistake, has the force of resjudicata and the self-same amendment introduced by subsequent amendment application cannot be allowed and as such the impugned order is liable to be quashed. Per contra, Sri P.K. Jain appearing for the Opp. Parties contended that amendment introduced was necessitated owing to plea taken in paragraph 27 of the written statement wherein defendant had taken the plea of benefit of section 20 (4) of the U.P. Act no. 13 of 1972 and as such, proceeds the argument, the same is in the nature of alternative plea and not a contradictory or inconsistent plea. He further contended that earlier application was dismissed as not pressed in view of technical flaw to the effect that in earlier amendment application the expression ''alternative plea' was conspicuous by its absence and that the expression ''alternative plea' was mentioned in the subsequent application as a sequel to the plea taken in para 27 of the written statement and as such by introduction of paragraph 9 A in the plaint, alternative plea was engrafted. The learned counsel further submitted that the defendant had acquired another house i.e. House no. V 77 at Gandhi Nagar Moradabad and was residing there and as such benefit flowing from section 20 (4) of the U.P. Act no. 13 of 1972 cannot be extended to him in view of proviso to section aforestated.
Having considered the arguments advanced across the bar and upon perusal of the materials on record, I am of the view that the amendment which the trial court allowed in the plaint does not have any complexion of contradictory plea and it was as a sequel to the plea taken by the defendant in paragraph 27 of the written statement by which benefit flowing from section 20 (4) of the U.P. Act no. 13 of 1972 was claimed by the defendant and in the circumstances, the trial court rightly allowed the amendment as alternative plea in the plaint particularly regard being had to proviso to section 20 (4) of the U.P. Act no. 13 of 1972 which envisages that nothing in this sub section, shall apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state, or has got vacated after acquisition, any residential building the same city, municipality, notified area or town area. In so far as argument of the learned counsel for the applicant that after dismissal of the first amendment application, the second amendment application would be fraught with the consequence of being barred by the principles of resjudicata, is concerned, I am unable to reconcile myself to the argument. It is clearly borne out from a bare perusal of the order that the first amendment application was dismissed as not pressed considering the ground that the initial application for amendment had some technical flaw and also reckoning into consideration that second amendment was necessitated as a sequel to the averments made in para 27 of the written statement. In this background, the argument cannot be lapped up and does not commend to me for acceptance and I am of the firm view that order dismissing the initial amendment application as not pressed on account of some technical flaw would not have the consequence of operating as resjudicata. In the above perspective, the order impugned herein does not suffer from any error, illegality or irregularity and as such is not liable to be quashed. In the perspective of the facts of the case, I am prompted to observe that the defendant will have ample opportunity to rebut the plea by filing written statement qua the amendment introduced in the plaint and the entire plea and counter plea would be reckoned with by the trial court in the course of trial of the suit.
As a result of foregoing discussion, the revision application is devoid of merit and is accordingly dismissed in limine.
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