Rakesh Tiwari, J. - (1.) -Heard counsel for the parties and perused the record.
(2.) BY means of this writ petition the petitioner has challenged the order dated 22.5.2006 rejecting the recall application filed by the petitioner for recall of the order dated 24.8.2005 as well as for quashing the order dated 24.8.2005 dismissing the S.C.C. revision registered as Misc. Case No. 496/74 of 2005 and the order dated 19.5.2005, passed by the Judge, Small Causes Court, Kanpur Nagar in the aforesaid S.C.C. Suit No. 33 of 2003. Brief facts of the case are that the respondents filed S.C.C. Suit No. 33 of 2003 in the Court of Judge, Small Causes Court, Kanpur Nagar. The suit was contested by the petitioner by filing written statement. The petitioner moved an amendment application under Order VI, Rule 17 of the C.P.C., for amending the written statement wherein it was averred that on account of some confusion that certain important facts and grounds could not be stated/taken in the written statement of the applicant-defendant and the said mistake came to the knowledge of the applicant-defendant while preparation of the case for final hearing. It was also averred in the amendment application that the petitioner has brought to the notice of the Court all the material facts before the Court, which according to him were essential for consideration for decision in the case. The amendment sought in the written statement given in paragraph 4 of the amendment application is as under : "4. Between paras 16 and 17, the following para 16A be written." "16A. That even if it is presumed that the said disputed accommodation is governed by the provisions of U. P. Act No. 13 of 1972 (which is not admitted to the defendant even then as the answering defendant has deposited the entire arrears of rent with interest and the costs of the suit on the first date of hearing, he is liable to be relieved from eviction under the provisions of Section 114 of Transfer of Property Act and no decree of his eviction can be passed in the present suit." B. In para 1, line 4 words "shop" be deleted and in its place word "accommodation" be written. C. In line 3 of para 3 word "disputed godown" be deleted and in its place words "tenanted accommodation" of "answering defendant" be written. In the end of the said para following words be added. "The tenanted accommodation of the answering defendant is comprised of one godown, labour quarter and common latrine and bathroom. D. Between para 16A (to be added, and para 17, following paras "16B and 16C" be written. "16B. That as the plaintiffs have determined the tenancy of the answering defendant in piece-meal in respect of only godown his notice of demand and ejectment is absolutely illegal and the present suit for eviction of the answering defendant from the part of his tenanted accommodation is not also sustainable under the law. 16C. That the description and boundaries of the tenanted accommodation of the answering defendant is incorrect, as such the suit of the plaintiff is barred by the provisions of Order VII, Rule 3, C.P.C." D. In verification paragraph between figure "16 and word and" "figure "16A, 16B and 16C" and be written."
(3.) IT was also averred in paragraph 5 of the amendment application that the aforesaid amendments would not change the nature of the case. The Judge, Small Causes Court, Kanpur Nagar vide order dated 19.5.2005 rejected the aforesaid amendment application of the petitioner holding that the trial has begun and the evidence of P.W. 1 on behalf of the plaintiff has already been concluded and as such the amendment application was not liable to be accepted as conditions laid down in Order VI, Rule 17 are not satisfied. The Court has further held that the petitioner has given a false affidavit for making out a case. The order dated 19.5.2005 of the Judge, Small Causes Court, Kanpur Nagar is as under : ...[VERNACULAR TEXT OMMITED]...;