- (1.) THE instant writ petition has been filed by the petitioner for quashing the order dated 08.08 2012 passed by the learned Addl.District Judge, Court No.16, Lucknow in the the Rent Appeal No.18 of 2012 Zahid Husain Versus Sant Swaroop Nigam whereby his amendment application for seeking amendment in his written statement filed before the trial court has been dismissed. I have heard Shri M.A.Siddiqui, learned counsel for the petitioner and Shri Ausaf Ahmad Khan, learned counsel for the respondent and perused the record. Considering the nature of the dispute involved, the revision with the consent of the learned counsels is being decided finally at admission stage itself. Submission of the learned counsel for the petitioner is that a liberal view should be taken by the Court in allowing the amendment application. The lower court has acted illegally and with material irregularity in dismissing his amendment application for making amendment in the written statement filed before the trial court.
(2.) ON the other hand, it has been submitted by the learned counsel for the respondents that the lower court has rightly dismissed the amendment application of the petitioner in as much as the proposed amendment was only a repetition of what had already been averred before the trial court in the original written statement. His further submission is that the said amendment application was given only to delay the disposal of the appeal and the eviction proceedings taken up against the petitioner. Admittedly, the present proceedings before the lower court arose out of the proceedings under U.P.Act no.13 of 1972 (in short referred to as 'Act' hereinafter). Undisputedly, by virtue of Rule 22-d of the Rules framed thereunder, the provisions of Code of Civil Procedure applies in respect of the power to allow an amendment application. The provisions for amendment in the pleadings have been provided in the Code of Civil Procedure in its Order 6 Rule 17 which after its amendment by Act no.22 of 2002 with effect from 01.07.2002 read as under :- ?17. Amendment of pleadings:- 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 question in controversy between the parties; Provided 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.?
(3.) THE plain reading of the aforesaid provisions of Order 6 Rule 17 makes it clear that not only the nature of proposed amendment should be necessary for determining the real question in controversy between the parties but it must also be shown that in spite of due diligence, the party was not able to raise the matter before the commencement of the trial. In the memo of the writ petition not a single word is there on behalf of the petitioner as to why he could not have raised the matter covered by proposed amendment before commencement of the trial.;