- (1.) Heard Mr. Qamar Ahmad, learned Counsel for the petitioner as well as Mr. Jaspreet Singh, learned Advocate holding brief of Mr. B.K. Saxena, learned Counsel for the opposite parties on the application for amendment of the writ petition. The petitioner has moved the present application for amendment to induct the following ground as well as the prayer:-- Ground: XVII. Because section 15 of Act No. 9 of 1887 read with its U.P. Amendment and Schedule-II thereto as amended in its application to Uttar Pradesh read with section 7 and Order L of the Civil Procedure Code are violative of Part-Ill specially of Articles 13, 14, 19, 21 and 39A of Part-IV of the Constitution as such rendering these provisions of Act No. 9 of 1887 and Act No. 5 of 1908 as amended from time to time null and void in view of case reported in Kiran Singh v. Chaman Paswan, 1954 AIR(SC) 340amongst others. Prayer:-- (iv) issue a suitable writ, order or direction declaring section 15 of Act No. 9 of 1887 read with its U.P. Amendment and Schedule-II thereto as amended in its application to U.P. as ultra vires. (v) issue a suitable writ order or direction declaring section 7 and Order L of the Civil Procedure Code as ultra virus. As is evident through the proposed amendment the petitioner has prayed for issuing a direction to declare section 15 of the Act No. 9 of 1887 as ultra vires and further to declare section 7 and Order L of the Civil Procedure Code as ultra vires.
(2.) Through the instant writ petition the petitioner has challenged the order dated 31.3.1981, passed by the Small Causes Court, Lucknow whereby the suit of the opposite parties has been decreed for eviction of the petitioner as well as the order dated 15.4.1983, passed by the VII Additional District Judge, Lucknow, whereby the decree passed by the Court below has been confirmed with some modification in the rate of mesne profits. Upon perusal of the record it appears that not once but several times the writ petition has been dismissed. In default which shows the conduct of the petitioner that he is not interested to pursue the writ petition. Through the proposed amendment the petitioner has tried to raise the question on the proceeding of the Small Causes Courts, whereas he never raised such a plea either before the Small Causes Court or before the Revisional Court, whereas the matter is pending since 1981. The relief sought through the proposed amendment has no concern with the merit of the case, but it appears that just to keep linger on the matter, he has moved the application for amendment. Accordingly he is still not interested to get disposed of the matter finally. The Hon'ble Supreme Court in the case of Revajeetu Builders and Developers v. Narayanaswamy and Sons and others, 2009 10 SCC 84 has laid down the guidelines for consideration of the applications for amendment in paragraph 63 of the judgment, which, is reproduced hereunder:-- 63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment; (1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or mala fide. (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. There are some of the important factors which may be kept in mind while dealing with application filed under Order VI, Rule 17. These are only illustrative and not exhaustive.
(3.) After going through the facts and circumstances of the case as well as proposed amendment I am of the view that the proposed amendment does not come in any of the criteria laid down by the Hon'ble Supreme Court in the aforesaid case, therefore, I am not inclined to entertain the application for amendment and the same is rejected. List the writ petition for hearing.;