Delhi High Court
V.C. Rishi vs S.L. Saluja And Ors. on 24 October, 1986
Equivalent citations: 31(1987)DLT132
JUDGMENT Sananda Bhandare, J.
(1) This revision petition under Section 115 of the Code of Civil Procedure is directed against the order of the Sub Judge, 1st Class, Delhi dated 5th January 1985 whereby the application of the petitioner moved under Order 6, Rule 17 read with Section 151 Civil Procedure Code for amendment of the objections was rejected.
(2) The petitioner is the objector in respect of execution of the decree obtained by respondents I to 5 against respondents 6 to 11 herein. The petitioner claims to be in possession of the premises in question as a tenant and the decree was obtained in his absence without making him a party. In the application for amendment, the petitioner has sought to give some details regarding the premises in his occupation, however the court below has refused to grant this amendment on the ground that these facts are already on record and. therefore, the amendment is not necessary. This amendment giving further particulars and details of property in possession of the petitioner is contained in paragraph 6(a),6(c) and 6(e) of the amendment application. A further amendment is sought for in paragraphs 6(b) and 6(d) wherein the petition wants to take an alternate plea that in case it is held that the petitioner is not a tenant then he had become an owner by adverse possession. This amendment has been refused by the court below on the ground that no alternate plea can be allowed to be taken by way of an amendment because in the objection it has been pleaded that he is a lawful tenant.
(3) Learned counsel for the respondents however submitted that the petitioner is continuing in possession for the last several years without paying any single farthing to the respondents and the application is moved only to delay the proceedings further. To this, the reply of the petitioner is that he has not accepted the ownership of the respondents and he is claiming tenancy under some other person.
(4) In the present case, amendment giving details was disallowed because because the plea was already taken and it was felt that submissions can be made on the basis of the record. It is well-settled that an amendment application clarifying and giving particulars of facts already stated in the pleading is normally allowed because it helps the proper and effective determination of the dispute between the parties. This also avoids multiplicity of proceedings. If details regarding the property in question are brought on record the dispute itself could be narrowed down. The trial court, therefore, ought to have allowed the amendment.
(5) Now as regards the second amendment seeking alternate plea, the position in law is well-settled. If there is no variation in the cause of action, alternate plea can be allowed to be taken. In fact in Panchdeo Narain Srivastava v. Kumari Joyti Sahay & Another, Air Sc 462 the Supreme Court has even allowed withdrawal of and admission by way of an amendment. In this view of the matter, I feel that for proper and effective determination of the dispute, the amendments sought for by the petitioner ought to have been allowed.
(6) In the result the petition is allowed. The impugned order 5th January 1985 is set aside. However, in order to ensure that the objections which are pending since long are disposed of at an early date, the petitioner is directed to deposit the arrears of agreed amount of compensation for the use and occupation of the premises in the trial court. The future agreed amount of compensation to be deposited in the trial court by the 15th of each month. Parties will appear before the trial court on 1st December 1986. The trial court is also directed to dispose of the objections within six months from today. No costs.
--- *** ---