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Mar Consent of the Learned Counsels Is Being Ausaf Ahmad Khan Decided Finally at Admission Stage Itself

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Mar Consent of the Learned Counsels Is Being Ausaf Ahmad Khan Decided Finally at Admission Stage Itself 1 All] Zahid Husain vs. Additional Distt. Judge No. 16 Lucknow and another 281 0ORIGINAL JURISDICTION order dated 08.08 2012 passed by the CIVIL SIDE learned Addl.District Judge, Court No.16, DATED: LUCKNOW 21.03.2013 Lucknow in the the Rent Appeal No.18 of 2012 Zahid Husain Versus Sant Swaroop BEFORE Nigam whereby his amendment THE HON'BLE ASHOK PAL SINGH, J. application for seeking amendment in his Rent Control No. 77 of 2012 written statement filed before the trial court has been dismissed. Zahid Husain ...Petitioner Versus 2. I have heard Shri M.A.Siddiqui, Additional Distt. Judge Court No. 16 learned counsel for the petitioner and Shri Lucknow and another ...Respondents Ausaf Ahmad Khan, learned counsel for the respondent and perused the record. Counsel for the Petitioner: M.A. Siddiqui 3. Considering the nature of the Counsel for the Respondents: dispute involved, the revision with the Manish Kumar consent of the learned counsels is being Ausaf Ahmad Khan decided finally at admission stage itself. U.P. Urban Building (Regulation of 4. Submission of the learned counsel letting of Rent) Act 1972-Rule-22-d- for the petitioner is that a liberal view applicability of the provision of order 6 should be taken by the Court in allowing Rule 17(as amended by Act no. 22 of the amendment application. The lower 2002)-for proposed amendment-one has show in spite of due diligence-not able to court has acted illegally and with material raise those fact before commencement irregularity in dismissing his amendment of trail-in absence of pleading in writ application for making amendment in the petition as well as before trail court- written statement filed before the trial except repetition of facts-held-proposed court. amendment nothing but simple a device to delay proceeding-rightly rejected. 5. On the other hand, it has been Held: Para-10 submitted by the learned counsel for the respondents that the lower court has The impugned order passed by the lower rightly dismissed the amendment court also discloses that there is a application of the petitioner in as much as specific finding recorded by the lower the proposed amendment was only a court that the proposed amendment was merely the repetition of the facts already repetition of what had already been mentioned in the written statement. As averred before the trial court in the such it was not at all necessary for original written statement. His further deciding the real controversy between submission is that the said amendment the parties. application was given only to delay the disposal of the appeal and the eviction (Delivered by Hon'ble Ashok Pal Singh, J) proceedings taken up against the petitioner. 1. The instant writ petition has been filed by the petitioner for quashing the 282 INDIAN LAW REPORTS ALLAHABAD SERIES [2013 6. Admittedly, the present 9. In the memo of the writ petition not proceedings before the lower court arose a single word is there on behalf of the out of the proceedings under U.P.Act petitioner as to why he could not have raised no.13 of 1972 (in short referred to as 'Act' the matter covered by proposed amendment hereinafter). Undisputedly, by virtue of before commencement of the trial. Rule 22-d of the Rules framed thereunder, the provisions of Code of Civil Procedure 10. The impugned order passed by the applies in respect of the power to allow an lower court also discloses that there is a amendment application. specific finding recorded by the lower court that the proposed amendment was merely the 7. The provisions for amendment in repetition of the facts already mentioned in the pleadings have been provided in the the written statement. As such it was not at Code of Civil Procedure in its Order 6 all necessary for deciding the real Rule 17 which after its amendment by Act controversy between the parties. no.22 of 2002 with effect from 01.07.2002 read as under :- 11. From the facts and circumstances of the case, it also appears “17. Amendment of pleadings:- The that the amendment application moved by Court may at any stage of the proceedings the petitioner in appeal for making allow either party to alter or amend his amendment in the written statement pleadings in such manner and on such which was filed before the trial court was terms as may be just, and all such nothing but simply a device to delay the amendments shall be made as may be further proceedings of the case. necessary for the purpose of determining the real question in controversy between 12. In the above facts and the parties; circumstances, no illegality or infirmity is found to have been caused by the lower Provided that no application for court in passing the impugned order. amendment shall be allowed after the trial has commenced, unless the Court comes 13. The writ petition, therefore, to the conclusion that in spite of due being devoid of any merits, is hereby diligence, the party could not have raised dismissed with costs. the matter before the commencement of --------- trial.” RIVISIONAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 06.02.2013 8. The plain reading of the aforesaid provisions of Order 6 Rule 17 makes it BEFORE clear that not only the nature of proposed THE HON'BLE S.C. AGARWAL,J. amendment should be necessary for determining the real question in Criminal Revision No. 217 of 2013 controversy between the parties but it must also be shown that in spite of due Pawan Kumar and others . .. Revisionists diligence, the party was not able to raise Versus the matter before the commencement of State of U.P. And another...Opposite Parties the trial. 1 All] Pawan Kumar and others Vs. State of U.P. And another 283 Counsel for the Petitioners: Sections 498A, 323, 504, 506 IPC and 3/4 Md. Imran Khan D.P. Act, P.S. Meerapur, District whereby Counsel for the Respondents: the application under Section 245 (2) A.G.A. Cr.P.C. praying for discharge has been rejected. Criminal Procedure Code=Section- 397/401-Revision- Against rejection of 5. The grievance of the revisionists discharge Application-on ground-for is that in respect of the same incident and same allegation two prosecution can not on the basis of same cause of action, the be -held-in view of provisions contained complaint case has been filed and First in Section 210(2) no bar-both can go simultaneously-revision dismissed-with Information Report was also lodged liberty to move application before against the revisionists wherein, after magistrate itself. investigation, charge sheet has been submitted by police. Held: Para-9 6. The contention is that two From the aforesaid provision, it is clear that on the basis of same facts, a prosecutions on the same grounds cannot complaint as well as the police case can proceed simultaneously and the both be tried together as State case and Magistrate ought to have discharge the there is no bar against criminal case revisionists in the complaint case. being prosecuted by complainant. It would be appropriate that the 7. Learned AGA supported the revisionists shall move an application before the Magistrate concerned making impugned orders. There is no bar in the an appropriate prayer in terms of Section Court of criminal procedure for trial of an 210(2) Cr.P.C. accused in a police case as well as in a complaint case on the basis of same facts. (Delivered by Hon'ble S.C. Agarwal, J) 8. This fact has been taken care of 1. Supplementary affidavit filed by Section 210(2) Cr.P.C. which provides today is taken on record. as under:- " If a report is made by the 2. Heard learned counsel for Investigating Officer police Officer under revisionists and learned AGA for the Section 173 and on such report State. cognizance of any offence is taken by the Magistrate against any person which an 3. There is no need to issue notice to accused in the complaint case, the opposite party no.2, Smt. Namita, the Magistrate shall inquire into or try complainant. together the complaint case and case arising out of police report as if both the 4. This revision under Section 397, cases were instituted on a police report." 401 Cr.P.C. is directed against the order dated 20.11.2012 passed by Judicial 9. From the aforesaid provision, it is Magistrate, Court No.2, Muzzafarnagar in clear that on the basis of same facts, a Crl. Complaint Case No.2/9 of 2012 (Smt. complaint as well as the police case can Namita Vs. Pawan Kumar and ors) under both be tried together as State case and 284 INDIAN LAW REPORTS ALLAHABAD SERIES [2013 there is no bar against criminal case being Counsel for the Respondents: prosecuted by complainant. It would be C.S.C. appropriate that the revisionists shall Sri Rakesh Bahadur move an application before the Magistrate Sri S.K. Gupta concerned making an appropriate prayer in terms of Section 210(2) Cr.P.C. U.P. Municipal Corporation Act 1959- Section 175(1)readwith U.P. Water Supply and Sewage Act 1975- demand of 10. As far as the question of water tax-petitioner being airport discharge is concerned, there is sufficient authority-imparting training in field material in the statement as recorded airport management, air traffic control under Sections 200 and 202 Cr.P.C. to and navigation surveillance services warrant trial of the revisionists for the including dwelling, houses, offices, offences for which they have been hotels, hospitals etc.
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