- (1.) Heard Sri Govind Saran Nigam for the petitioners. This writ petition has been filed against the order of Judge, Small Cause Court dated 10.12.2013, rejecting the amendment application of the petitioners, for amending written statement.
(2.) Anuj Agrawal (respondent-2) filed an application (registered as RCPA No. 7/2012) under section 21(1)(a) of U.P. Act No. 13 of 1972 for release of the shop in dispute, which is in possession of the petitioners as a tenant. The case was contested by the petitioners and they filed their written statement on 5.3.2013. After filing of the written statement, the petitioners filed an amendment application under Rule 34 of the Rules framed under U.P. Act No. 13 of 1972 on 12.11.2013 for amending the written statement. The proposed amendments are in effect for adding paragraph 14-A in the written statement, raising the plea that respondent-2 purchased the house in dispute through sale-deed dated 7.1.2006 and filed a release application on its basis, without giving six months previous notice, as required under section 21(1)(a) proviso of the Act as such release application was not maintainable. The aforesaid application has been heard by Judge, Small Cause Court, who by the impugned order dated 10.12.2013, found that as trial had already commenced, as such, in view of proviso to Order VI, Rule 17, C.P.C., the amendment could not be allowed. On this ground amendment application was rejected. Hence, this writ petition has been filed.
(3.) The Counsel for the petitioners submits that proviso of section 21(1)(a) of U.P. Act No. 13 of 1972 raises a legal issue relating to maintainability of the release application. The provision has been held to be mandatory by the Supreme Court in Nirbhai Kumar v. Maya Devi, 2009 75 AllLR 606(SC). The plea sought to be raised by way of amendment, being the legal plea, was necessary for deciding the real controversy between the parties, the amendment ought to have been allowed by Judge, Small Cause Court, exercising its power under second part of Order VI, Rule 17, C.P.C., but it has been illegally rejected.;