- (1.) Heard learned counsel for the parties. By means of the present revision, the revisionist is challenging the orders dated 5.12.2015 and 10.12.2015 passed on his application 102-Ka for amendment and 107-Ga for review of the order dated 5.12.2015. By means of amendment application 102-Ka, the revisionist sought to amend paragraph '9' of the written statement which is as under:- "9-That the contents of para no. 10 of the plaint are wrong and strictly denied. No notice dated 15.3.2011 has been given by the plaintiff and the defendant never received the said notice and alleged notice is invalid."
(2.) In paragraph '9' of the written statement the revisionist/defendant denied the contents of paragraph '10' of the plaint. Paragraph '10' of the plaint is as under:- "10- That under these circumstances the plaintiff terminated the tenancy of the defendant by notice dated 15.3.2011 through Shri A.K. Goyal, Advocate which notice was returned in collusion with the postman. To avoid technical objections, fresh notice of Quit & Demand dated 18/20.4.2011 was sent to the defendant which was served upon the defendant on 23.4.2011. However, the defendant failed to comply with the said notice." In paragraph '10' of the plaint, the plaintiff had pleaded regarding service of notice dated 15.3.2011 sent through Sri A.K. Goyal. It was stated that this notice was returned in collusion with the postman. With regard to another notice dated 18/20.4.2011, it was stated that it was sent to the defendant and was served upon the defendant on 23.4.2011. In reply, the defendant though denied the service of notice dated 15.3.2011 but did not state a word regarding the service of notice dated 18/20.4.2011 except denial. By means of the amendment, he sought to add the pleading that the alleged notice dated 18/20.4.2011 was never served upon him nor he had ever refused to accept this notice nor he had any knowledge about such notice. Submission is that the amendment application has been rejected on the ground of delay. While preparing the written statement by mistake the counsel did not mention the date of notice dated 18/20.4.2011 in paragraph '9' of the written statement, though there is a categorical denial of the contents of the paragraph '10' of the plaint. This mistake is sought to be corrected by way of amendment. Earlier an application 93-Ga was filed by the revisionist for summoning the documents regarding service of notice and for examining the postman for proving the same but it was rejected vide order dated 25.8.2015.
(3.) This order was challenged in SSC Revision No. 310 of 2015 (M/s Panchwati Marketing Pvt. Ltd. Vs. Ravindra Kumar Jain) which was disposed of on 8.10.2015 with the observations as follows:- "Heard Sri Ashish Agrawal, learned counsel for the revisionist and Sri Madhav Jain, learned counsel for the opposite party. This SCC Revision has been filed against the order dated 25.8.2015 passed in SCC Suit No. 36 of 2011 by the Additional District Judge, Court No. 17, Agra, by which application no. 93 (ga) filed by the revisionist for summoning the relevant document regarding the service of notice and examining the postman for proving the same has been rejected. To this application, an objection was filed by the other side stating therein that the suit was filed in the year 2011 and the defendant has been filing application after application with the view to delay the proceeding and the present application has also been filed with a view to delay the disposal of the suit. It was also stated that the relevant materials are already on record and there is no need to summon the original record and examine the postman. The court below looking into the pendency of the case for the last 3 -4 years, rejected the application filed by the revisionist taking shelter of the provisions contained under Order 13, Rule 10 of the Code of Civil Procedure on the ground that the order for summoning the document can only be passed in case that is necessary for doing substantial justice to the parties and the court concerned, at the stage of final hearing, in case find that the summoning of record is necessary, it may summon the same. Sri Agrawal submits that the finding recorded by the court below to the extent of presumption of service without there being any specific finding on record or any prove on record that it was served on the revisionist, shall not be treated to be conclusive in view of section 27 of the General Clauses Act; whereas, Sri Jain, learned counsel for the opposite party submits that in view of the averments made in para 9 of the written statement, there is no doubt regarding the service. After hearing counsel for the parties, I am of the view that the court below has not committed any illegality in rejecting the application of the revisionist. However, it is observed that the finding regarding presumption of service of summon may not be treated to be conclusive and it is open for the revisionist to prove the same otherwise, if necessary. With the aforesaid observation/direction, the revision is disposed of." Submission is that as this Court has left open to the Court below to decide the question of service of notice and further to the revisionist to prove the same otherwise, the amendment sought herein is necessary. In absence of pleading regarding service of notice, the revisionist will not be able to dislodge the presumption of service of summons drawn by the court below. Submission is that inconsistent plea can be allowed to be taken/added by way of amendment as has been held by the Supreme Court in Baldev Singh and others etc vs. Monohar Singh and another etc., 2006 3 ARC 253 and Usha Balashaheb Swami & Others vs. Kiran Appaso Swami and Others, 2007 2 ARC 402 . Referring to paragraph '20' of the judgment of Supreme Court in Usha Balashaheb Swami , he submits that addition of a new ground of defence for substituting or altering a defence or taking inconsistent pleas in the written statement cannot be refused by the Court. The amendment in the plaint and the written statement stand on a different footing.;