YAMIN J. - (1.) APPLICATION under order 6 Rule 17 was submitted by the petitioner defendant was dismissed by the learned Addl. District Judge No. 3 Jodhpur in first appeal No. 26/98, by order dated 25. 8. 98. The revision has been preferred against the order. The facts may be narrated as follows:
(2.) RESPONDENT-plaintiff is the landlord and petitioner defendant is a tenant. Plaintiff filed a suit for arrears of rent and eviction on the ground of personal bonafide need. The suit was decreed by the trial Court and the tenant preferred appeal No. 26/98 before the District Judge Jodhpur who transferred the same to the learned Addl. District Judge. There petitioner- defendant-tenant moved an application under Order 6 Rule 17 C. P. C to amend the written statement as well as the ap- peal to the effect that since rent of the suit property was only Rs. 35/- initially and the same was increased from time to time and ultimately came to be Rs. 150/- per month, the same be adjusted in suit due. The tenant petitioner therefore, wanted to plead that he had made payment of an amount more than the standard rent. should be adjusted. It was pleaded before the appellate Court that the defendant could not take this plea inadvertantly in the written statement and now permission may be given to add the following paragraphs: ******** The learned appellate Judge rejected the prayer to amend written statement. Hence this revision has been preferred. I have heard the both the counsel for the petitioner and respondent at length. Counsel for the petitioner submitted that the law about amendment provides that Court should be liberal in allowing amedment. He further submitted that the application of amendment cannot be refused on the ground of delay. It can be refused only when it changes the nature of the suit. He submitted that the merits of the amendment are not to be seen at the time of allowing or disallowing the amendment and if the amendment is necessary to determine the real questions of controversy between the parties the same should be allowed. So far as the present case is concerned I find from the order of the learned appellate Judge that he has disallowed amendment application because the same was not bonafide and was delayed one. The counsel for the petitioner submitted that amendment is allowed even at the stage of second appeal and for that he cited Smt. Mohani & Ors. vs. Mst. Gopli @ Shanti & Anr. (1 ). He further cited Smt. Bina & Ors. vs. Karan Singh (2) wherein the defendants wanted to amend the written statement by taking plea that standard rent be fixed. It was allowed at the stage when the suit was pending for final arguments. He also cited Ajeet Kumar Jain vs. Smt. Urmila Sharma (3) and submitted that if the amendment was necessary for decision of the question in controversy the same may be allowed on payment of cost. He cited Virendra Kumar vs. Satpal (4) where the amendment application wad disallowed by the trial Judge on merits. But the High Court allowed amendment on cost. Ramavtar Gupta vs. Manak Raj (5) was also relied by the counsel for the petitioner wherein it has been held that a party should not be refused just relief merely because of some mistake or negligence, inadvertence or even infraction of the rules of procedure has been made. In Hanuwant Singh Rawat vs. M/s Rajputana Automobiles, Ajmer (6) amendment of written statement was sought after 9 years of filing of suit and after 8 years of filing of written statement and 5 years after filing of second appeal even then it was allowed. Reliance has also been placed on Ram Prasad vs. Rukma Devi & Ors. (7) In which defendant had raised his defence that the suit premises did not belong to the plaintiff exclusively. After filing of the statement he had bought a certain share. He was entitled to submit this plea by way of amendment and for delay the plaintiff was compensated. In Jai Jai Ram Manohar Lal vs. National Building Mate- rial Supply, Gurgaon (8) it has been held that amendment of plaint was a discretion of Court and the same was not to be refused on technical ground. In Harcharan vs. State of Haryana (9) wherein it was observed that application for amendment of memo of appeal should not be rejected merely on the ground of delay. The following citations were also relied by the counsel for the petitioner Parmatma Prasad Dwivedi vs. B. J. Shahaney through his Lrs. & Anr. (10) wherein it was observed that amendment in the memorandum of appeal could be allowed to be raised by way of additional plea which were not earlier placed. In Firm Janki Lal Ramdas vs. Mohandas (11) it was observed that court has to see whether the amendment causes is frivolous. In Gokul Ram Vs. Hari Ram & Ors. (12)Wherein it has been observed that whether the amendment is very necessary and it goes to the very root of the main cause of action, the amendment application is allowed even though some delay has been done. For the preposition that the Court should not see the merits reliance has been placed on Chintaparthi Venkataramana Reddy vs. Nallan Rajamma & Anr. (13) wherein it has been observed that in a petition for amendment of plaint the curt has no power to consider the merits of the proposed amendment at the stage of consideration of question whether the amendment should be allowed for the preposition that amendment could be allowed at any stage Court Reliance has been placed on Ghauri Bala Dutta vs. IIIrd Add. Civil Judge, Varanasi (14) wherein it has been observed that in a suit for eviction when defendant has raised new plea being vital for adjudication of controversy, amendment can be allowed even at the appellate stage. The sum and substance of the citations relied by the learned counsel for the petitioner is that keeping in view the all the points, it is the discretion of the Court to allow or disallow amendment. The settled law is that the discretion should be used judiciously and not arbitrarily. So I have to see whether the learned appellate Judge has used his discretion arbitrarily. Ofcourse the law about the amendments is a bit linent but the Court has to see if the amendment sought is malafide or not. The learned appellate Judge has found it to be malafide on the part of the defendant.
(3.) LEARNED counsel for the respondent relied on Kapur Chand Singhal vs. Gopal Prasad (15) in which amendment was refused because the application was filed after a long lapse of time from the date of suit and the application was filed after the suit was decreed. It was held that application cannot be termed to be bonafide. In view of the A. I. R. 1991 Page 216 (Supra) the Court can look into a new plea which is being sought to be added. If the court finds that the plea is such which is vital for determination of controversy the amendment can be allowed at any stage. In 1992 (1) R. L. R. Page 752 (16) relied by the counsel for the respondent plea for fixation of standard rent was taken after 5 years of filing of suit and after evidence of plaintiff was complete. It was held that this application being highly delayed and was for the purpose of delaying proceedings deserved to be rejected because the defendant can file fresh proceedings for fixation of standard rent. Here the defendant petitioner has come up with a new plea for adjustment of rent which he has paid to the landlord without getting the standard rent fixed to adjust the rent. He knew it very well that the agreed rent between the parties was Rs. 35/- per month only but even then he went on to increase the amount of rent as per the demand of the plaintiff. At the time of filing of the civil suit the suit rent was Rs. 150/- per month. The defendant did not raise the plea that the rent was only Rs. 35/- per month when he submitted the written statement and contested whole suit. He wants to take such a plea in appeal which he can get decided separately by a sep- arate suit by filing a suit of standard rent. The learned appellate Judge in my view was right in coming to the conclusion that the defendant petitioner had not come with bonafide by saying that he could not take plea inadvertantly. The facts were within the knowledge of the defendant petitioner. By saying that he inadvertantly did not plead the same in the written statement is just a pretext to further delay the proceedings. After having read the order of learned appellate Judge I do not find any error of jurisdiction in disallowing the amendment. The revision petition is hereby dismissed. No order as to costs. 1999 RLW 1 .;