Delhi District Court
M/S. Atma Ram Properties Pvt. Ltd vs M/S. P. S. Jain Co. Ltd on 29 August, 2012
IN THE COURT OF JITENDRA KUMAR MISHRA, ADDL.
DISTRICT JUDGE CENTRAL-09: TIS HAZARI COURTS: DELHI
CS N0. 150/11.
M/s. Atma Ram Properties Pvt. Ltd.
........... Plaintiff
Versus
1. M/s. P. S. Jain Co. Ltd.
2. Syndicate Bank
......... Defendants
ORDER
1. By this order I shall dispose of an application moved by defendant no.
1 under the provisions of Order 6 Rule 17 read with Section 151 of CPC for permission to amend the written statement. The application was moved on 09/10/2006.
2. It is mentioned in the application that amongst the plaintiffs documents is the sale deed dated 31/05/1980 executed by Messrs Khushwant Singh and Gurbaksh Singh in favour of the plaintiff company in respect of the property which has been loosely described as 'Scindia House', ad-measuring 3.291 acres for a total sale consideration of a sum of Rs. 75 lacs. It is further stated in the application that in the said sale deed although the area of the land upon which the building has been constructed has been given, as mentioned herein above, the total covered space is not mentioned, but is widely known to be 2 lacs sq. ft. It is further mentioned that upon perusal of the sale deed for the first CS No. 150/11 M/s. Atma Ram Properties P. Ltd. Vs. M/s. P. S. Jain Co. Ltd. Page 1 time, defendant no. 1 was advised by its learned counsel that in view of the security deposit being in such a large sum of Rs. 9.5 lacs under the lease deed of a mere 7000 sq. ft. of covered space as against the plaintiff's total sale consideration being a mere Rs. 75 lacs for 2 lacs sq. ft. of space and in view of other surrounding circumstances, it was manifest that the said security deposit was by way of sale consideration for the suit property paid to the plaintiffs and the erstwhile owners Messrs Khushwant Singh and Gurbaksh Singh. An application under the provisions of Order 7 Rule 11 of CPC praying for rejection of the plaint on the ground of plaintiff not having the locus standi to maintain the instant suit for want a jural relationship between the plaintiff and defendant no. 1. Mr. Prabhash Jain, Managing Director of defendant no. 1 has met with one of the erstwhile owners Sardar Khushwant Singh on 20/09/2006 and opined that defendant no. 1 was inducted as a mere lessee of approximately 7000 sq. ft of space comprised in 'Scindia House' against non refundable security deposit of Rs. 9.5 lacs the plaintiff was sold over 2 lacs sq. ft. of covered space comprised in the same Scindia House two years later on 31/05/1980 for a meager sum of Rs. 75 lacs. It is further stated that at the time of the said transaction, Shri Prabhash Jain was a boy with little experience of business and the documentation at the time of the induction of defendant no. 1 into the suit property was done in the manner, it is on record. The said Sardar Khushwant Singh has clarified at the said meeting on 20/09/2006 that the devise of lease deed and security bond was conceived because the erstwhile owners were not in a position to sell the suit property, carved out from the entire building called Scindia House. It is further stated that due to difficulties faced for eviction of tenants, defendant no. 1 was shown to be inducted as a tenant upon receipt of entire sale consideration for the suit property. It CS No. 150/11 M/s. Atma Ram Properties P. Ltd. Vs. M/s. P. S. Jain Co. Ltd. Page 2 is further stated that the erstwhile owner has clarified to Sh. Prabhash Jain that the document of lease was a mere sham camouflaging the real transaction of sale of the suit premises to defendant no. 1. It is further stated that perusal of sale deed shows that the erstwhile owners retained the said security deposit in the sum of Rs. 9.5 lacs paid by defendant no. 1 when in normal course, if the said sale deed executed between the erstwhile owners of Scindia House and the plaintiff herein included the suit property, the said security deposit would have also been surrendered to the plaintiff. Thus, if is further stated that defendant no. 1 is the owner of the suit property and not a mere lessee thereof.
3. By the present application, defendant no. 1 is seeking necessary amendments in the written statement to the effect as mentioned in the application including amendments in preliminary objections as well as various paras as mentioned in the application to the effect that the status of defendant no. 1 be as owner of the suit premises and not as a tenant as submitted, admitted and projected by defendant no. 1 in the earlier written statement.
4. Reply to the application is filed wherein it is objected that by present application, defendant no. 1 is not only trying to retract from the admissions but it is even trying to put forth altogether separate and new pleas. It is further objected that in the guise of present application, defendant no. 1 is vehemently trying to withdraw not only the admissions but even such submissions which have undergone legal scrutiny by Single Bench, Division Bench of Hon'ble High Court of Delhi and furthermore even the Hon'ble Supreme Court of India, thereby laying a law. It is stated that in the guise of present CS No. 150/11 M/s. Atma Ram Properties P. Ltd. Vs. M/s. P. S. Jain Co. Ltd. Page 3 application, defendant no. 1 is trying to over reach the law of land. It is further stated that defendant no. 1 had originally filed its written statement in January, 1990 and thereafter amended written statement was taken on record pursuant to order dated 03/12/2002. It is further stated that In the garb of the present application, defendant no. 1 is trying to show itself owner of the suit property in total contradiction of contents of lease deed dated 05/01/1978, previous written statement and amended written statement filed by defendant no. 1 and thus such attempt by defendant no. 1 is to vary and retract from its admissions. It is further objected that the present application has been filed to further delay and prolong the litigation which is pending since 1989. In the reply, the plaintiff is seeking dismissal of the application.
5. Arguments heard as advanced by Ms. Sangeeta Jain, ld counsel for the defendant/applicant and Sh. Amit Sethi, ld counsel for the plaintiff/ non applicant at great length.
6. The present suit was filed by the plaintiff on 11/04/1989. Written statement to the plaint was filed by defendant no. 1 on 28/11/1989 wherein the preliminary objection was taken that the suit is barred under the provisions of Section 50 of Delhi Rent Control Act, challenge to maintainability of the suit as the tenancy created by the plaintiff in favour of the defendant did not come to an end. Status of the plaintiff as the owner and landlord of the tenanted premises was admitted in the said written statement. It was also admitted that defendant no. 1 is a tenant at the suit property. Lease deed executed between defendant no. 1 and erstwhile owner of the suit premises was also admitted. This written statement was verified and filed by Sh. Prabhash Jain, Director of defendant no. 1.
CS No. 150/11M/s. Atma Ram Properties P. Ltd. Vs. M/s. P. S. Jain Co. Ltd. Page 4
7. Amended written statement on behalf of defendant no. 1 was filed in the year 1997 which was again verified by Sh. Prabhash Jain, Director of defendant no. 1. In this written statement also, objection of Section 50 of Delhi Rent Control Act was again raised. Defendant no. 2 admitted itself as a tenant at the suit property. In para 3 on merits, it is claimed by defendant no. 1 that it continued to be a tenant by virtue of the provisions of Delhi Rent Control Act. It is further claimed by defendant no. 1 in para 5 on merits of the written statement that the tenancy created by the plaintiff in favour of defendant no. 1 is governed by provisions of Delhi Rent Control Act inasmuch as the rent payable did not exceed the sum of Rs. 3,500/-. An application under Section 151 of CPC was filed by the plaintiff on 12/07/99. Defendant no. 1 filed reply to the said application on 01/11/90 wherein defendant no. 1 again re-iterated that the suit of the plaintiff was not maintainable as the tenancy in favour of defendant no. 1 did not come to an end. In the said reply also, defendant no. 1 taken the shelter of Delhi Rent Control Act. Supporting affidavit to this reply was also filed by Sh. Prabhash Jain. Another application was moved by the plaintiff under Order 12 Rule 6 of CPC dated 13/05/1997. Reply to this application was filed by defendant no. 1 on 21/01/98. In the said reply also, the defendant admitted its status as a tenant at the suit property and did not claim anywhere ownership of the suit property. Supporting affidavit to this reply was again filed by Sh. Prabhash Jain, Director of defendant no. 1. Thus, prior to year 2006, it was claim of defendant no. 1 that he was a tenant protected as per the provisions of Delhi Rent Control Act at the suit property. Defendant never claimed ownership qua the suit property for about 17 years of the litigation and contested for the protection under the umbrella of Delhi Rent Control Act, 1958.
CS No. 150/11M/s. Atma Ram Properties P. Ltd. Vs. M/s. P. S. Jain Co. Ltd. Page 5
8. Now the contention raised by defendant no. 1 that in the year 2006 all of a sudden, he met with one of the erstwhile owners Sardar Khushwant Singh who suggested him that he is not a tenant but as per the security deposited by him with erstwhile owner compared with the consideration of the sale deed paid by the plaintiff to the previous owner, defendant no. 1 is in fact the owner of the suit premises but not as a tenant and in fact the earlier version given by defendant no. 1 for the 17 years of the present litigation was not correct but the defendant is owner of the suit property.
9. It is the contention of the defendant that Sh. Prabhash Jain, Director of defendant no. 1 was a young boy at that time and was little experience of the business when he entered into a lease deed with erstwhile owners of the suit property. In support of this application affidavit of Sh. Prabhash Jain has been filed wherein his age is mentioned as 55 years. The present application was moved in the year 2006 and the first written statement was filed by defendant no. 1 in this case on 28/11/1989 i.e. 17 years ago when the present application was moved. If we calculate the age of Director of defendant no. 1 Sh. Prabhash Jain when the earlier written statement was filed then it comes out that he was not less than 38 yeras of age when the first written statement was filed. It cannot be said that Sh. Prabhash Jain was a boy with a little experience of business but rather he was a matured young man aheading towards the middle age at that time who was a Director of company registered under the Indian Companies Act. Therefore, he must have signed the written statement in the year 1989 with open eyes and full conscious and awareness of the fact that he was signing and verifying a document to be submitted before the court. Moreover, he also taken legal advice and thereafter only he filed the said written CS No. 150/11 M/s. Atma Ram Properties P. Ltd. Vs. M/s. P. S. Jain Co. Ltd. Page 6 statement. Moreover, the transaction of lease was entered into with erstwhile owner of the suit premises in the year 1978 by Sh. Prabhash Jain with Sardar Kushwant Singh and at that time his age must be around 27 years i.e. a grown up major person who can very well entered into any transaction and was well assisted by its manager Mr. Jain Dass Jain, S/o. Late Sh. Anoop Singh Jain.
10. Now the question arises what prompted defendant no. 1 to move the present application for amendment of written statement. As per defendant no. 1, a meeting with erstwhile owner Sardar Khushwant Singh revealed that the transaction was not for lease deed but in fact the transaction was for conferring ownership upon defendant no. 1 as it was informed that the lease was mere sham camouflaging the real transaction of sale of the suit premises to defendant no. 1. The defendant did not exercise its right as a owner for all such years up to 2006 and contested the suit not even before this court but also before the Hon'ble High Court and up to the Hon'ble Supreme Court of India. The Hon'ble High Court by order dated 16/12/1996 in FAO (OS) 62/95 started the order with opening sentence 'This is an appeal by the tenant (first defendant).......'. It is further mentioned in the said order that the contention was raised by defendant no. 1 that the civil court had no jurisdiction and the plaintiff had to go before the Rent Controller. During arguments, ld counsel for the plaintiff informed that this judgment was challenged by the defendant before the Hon'ble Supreme Court and the petition of the defendant was dismissed by the Hon'ble Supreme Court. He further informed that said petition was also filed by the defendant in the status of a tenant. Thus, when defendant no. 1 lost up to the Hon'ble Supreme Court regarding the rate of rent and to bring the suit property within the purview of Delhi CS No. 150/11 M/s. Atma Ram Properties P. Ltd. Vs. M/s. P. S. Jain Co. Ltd. Page 7 Rent Control Act, the present application has been filed.
11. During arguments, ld counsel for the plaintiff relied upon para 8 and 9 of Vivek Narayan Pal Versus Sumitra Pal 169 (2010) Delhi Law Times 443 (DB) wherein it was held :
"8. A three-Judge Bench of the Supreme Court in Modi Spinning & Weaving Mills Company Ltd. v. Ladha Ram, AIR 1977 SC 680 has held that an amendment in the pleading which had an effect of displacing the plaintiff from the admissions made by the defendant in the written statement cannot be allowed. It was held that if such amendments are allowed, the plaintiff will be irretrievably prejudiced by being denied opportunity of extracting the admission. In the case of Heeralal v. Kalyan Mal, V (1998) SLT 395 = AIR 1998 SC 618, the suit for partition was filed of several properties. The defendants in their written statement took a definite stand with respect to only some of the properties, claiming exclusive title thereto and meaning thereby that the other properties were admitted to be joint. Thereafter amendment was sought claiming some other properties also to be exclusive properties. The Supreme Court held that the order allowing withdrawal of earlier admissions in the original written statement could not be sustained. It was held that the defendants having taken a plea of only some of the properties being their exclusive property were deemed to have admitted the other properties to be joint and could not thereafter amend the written statement to plead, the properties earlier so admitted to be joint to be also their exclusive property. It was held that on the basis of the said admission a preliminary decree could have been passed and if the amendment is granted, the whole case of the plaintiff qua admitted joint properties would get displaced. It was further held that a right to a decree which had accrued to the plaintiff by such admission could not be irretrievably deprived by allowing the amendment. The attention of the Judges was also invited to Akshaya Restaurant v. P. Anjhanappa, III (1996) CLT 187 (SC) = AIR 1995 SC 1498, to contend CS No. 150/11 M/s. Atma Ram Properties P. Ltd. Vs. M/s. P. S. Jain Co. Ltd. Page 8 that admissions in pleadings could be withdrawn. The Supreme Court (in Heera Lal) held that even if the judgment of the two-judges Bench of the Supreme Court in Akshaya Restaurant was to be read as allowing an amendment to withdraw an admission earlier made, the same was contrary to the three- Judge Bench judgment in Modi Spinning & Weaving Mills Company Ltd. (supra) and to which reference was not made in Akshaya Restaurant. It was thus held that the three Judge Bench judgment in Modi Spinning & Weaving Mills Company Ltd. will prevail.
9. We may also notice another judgment of a two-Judge Bench of the Supreme Court in Gautam Sarup v. Leela Jetly, III (2008) SLT 761=II (2008) CLT 294 (SC) = (2008) 7 SSC 5. It was held therein that an admission made in pleading is not to be treated in the same manner as admission in a document. An admission made by a party to the lis is admissible to him proprio vigore i.e. by its own force or by its intrinsic meaning. It was further held that a thing admitted in view of Section 58 of the Indian Evidence Act need not be proved. Order 8 Rule 5 of the CPC provides that even a vague or evasive denial may be treated to be an admission in which event the Court may pass a decree in favour of the plaintiff. It is one thing to say that without resiling from an admission, it would be permissible to explain under what circumstances the same has been made or that it is made under a mistaken belief or to clarify one's stand inter alia in regard to the extent or effect of such an admission but it is another thing to say that a person can be permitted to totally resile therefrom. The Supreme Court in this judgment reiterated that notwithstanding a contrary view taken by some of the other two Judge Bench judgments of the Supreme Court, the three Judge Bench judgment in Modi Spinning & Weaving Mills Company Ltd. Will prevail and an admission of the nature as to displace the plaintiff's case cannot be allowed. The two-Judge Bench judgments holding to the contrary were held to be per incurium. The Supreme Court summed up the law as, a categorical admission cannot be resiled from but in a given case it may be explained or clarified."CS No. 150/11
M/s. Atma Ram Properties P. Ltd. Vs. M/s. P. S. Jain Co. Ltd. Page 9 He further relied upon M/s. Modi Spinning & Weaving Mills Co. Ltd. and another Appellants v. M/s Ladha Ram & Co., Respondent, AIR 1977 Supreme Court 680, wherein it was held in para 9 :
"9. The decision of the trial Court is correct. The defendants cannot be allowed to change completely the case made in paragraphs 25 and 26 of the written statement and substitute an entirely different and new case."
He further relied upon Vyas Aqua Product Pvt. Ltd. Vs. UCO Bank & Anr. 2001 III AD (DELHI) 762, wherein it was held in para 7:
7. Learned Counsel for the plaintiff has further relied on Anar Devi Vs. Nathu Ram, 1994 (4) SCC 250 Head Note-B is of relevance, and is reproduced as below :
"Doctrine of tenant's estoppel" which governs the relationship of landlord and tenant is founded on a contract of tenancy entered into by them. This doctrine finds statutory recognition in Section 116 of the Indian Evidence Act 1872. In a suit for eviction by landlord, the tenant is estopped from questioning the title of the landlord because of Section 116. That section applies and estops even a person already in possession as tenant under one landlord from denying the title of his subsequent landlord when once he acknowledges him as his landlord by attornment or conduct. Therefore, a tenant of immovable property under landlord who becomes a tenant under another landlord by accepting him to be the owner who had derived title from the former landlord cannot be permitted to deny the latter's title, even when he is sought to be evicted by the latter on a permitted ground."
He further relied upon Patel Ganeshbhai Khushaldas, Petitioner v. Patel Becharbhai Madhavlal (deceased by LR's) and others, Respondents AIR 2004 GUJARAT 136, wherein it was held in para 9 :
"9. I have carefully considered proposed para-32A sought to be inserted in the written statement by the defendant. I have also considered the decisions cited by ld. counsel CS No. 150/11 M/s. Atma Ram Properties P. Ltd. Vs. M/s. P. S. Jain Co. Ltd. Page 10 Mr. Unwala. It is true that with a view to do the substantive justice, amendment can be allowed at any stage and that is the spirit of O.6 R. 17 of CPC. However, the ld. Trial Judge, while dealing with the application exh. 208, has considered all relevant aspects and the basic plea taken by the present petitioner. Even while praying for amendment, he has not stated that "if it is accepted that the plaintiff is the absolute owner of the property in question, in that situation, he the defendant has acquired ownership by way of adverse possession. It seems that by continuing with the main plea that he is the co-owner of the property, if simultaneously claiming acquisition of the ownership by adverse possession- a better status than of a co-owner. Such amendment and that too at a belated stage inconsistent with the main plea if is not allowed by the ld. trial Judge, it can not be said that the order passed by the ld. Trial Judge is in any way illegal or perverse. The ld. Judge is supposed to consider the prevailing law on the day on which the application for amendment was moved. It is rightly argued that embargo introduced in R. 17 of O. 6 of CPC cannot be ignored and ld. trial Judge has rightly not ignored. ......"
He further relied upon Smt. Shanti Devi Vs. Ganga Pershad 82 (1999) DELHI LAW TIMES 707, wherein It was held in para 9 :
"9. ......The present petitioner has purchased the property in question namely, the premises from the aforesaid three landladies. In the written statement filed by the respondent herein he has sought to deny the title of the aforesaid three landladies when he stated in his written statement that the plaintiff or her predecessor-in-interest have no right, title or interest in Shop No. 5414. Having admitted the right, title and interest of the predecessor-in- interest of the present petitioner in the case before the Rent Controller and also having admitted that the three ladies were his landladies, the defendant cannot turn back and try to take away the admissions made by him which would prejudicially effect the interest and claim of the petitioner. Besides the decree is sought for in the present suit in respect of the shop No. 5414. Therefore, the cancellation CS No. 150/11 M/s. Atma Ram Properties P. Ltd. Vs. M/s. P. S. Jain Co. Ltd. Page 11 of the lease in respect of the land cannot be strictly said to be an issue in controversy in the present suit. The effect of the impugned order would be than an entirely different and new defence would be raised which would also call for adducing additional evidence. Such amendment would definitely cause prejudice and injustice to the petitioner and that it cannot be said that the same is necessary for the purposes of determining the real question of controversy between the parties. Having admitted in the proceedings before the Rent Controller that he is a tenant in respect of the premises No. 5414, the respondent cannot deny the ownership so as to avoid the order of eviction. In coming to the aforesaid conclusion I am fortified by the decision of this Court in Thakur Dass (supra). In the said case it was held that the respondent in fact has a goods title against every body in the world including the petitioner but excepting the Delhi Development Authority and a tenant cannot take up a defence denying ownership so as to avoid an order of eviction......."
He further relied upon Sh. Mahinder Singh Vs. Smt. Iqbal Kaur & Others 1995 III AD (DELHI) 760, wherein it was held in para 5 :
"5. It is true that withdrawal of an admission can be permitted by an amendment, provided it can be satisfactorily explained as being a result of an inadvertent error or omission (AIR 1983 SC 462 titled Panchadeo Narain Srivasstava Vs. Km. Jyoti Sahay and Another). In the present case, however, the admission sought to be withdrawn and the inconsistent plea sought to be introduced cannot be attributed to any inadvertent error or omission. On the contrary, the averments made in the application for amendment do not inspire any confidence and cannot be said to have been made bona fide......."
He further relied upon Imtiaz Ali, Appellant v. Nasim Ahmed, Respondent AIR 1987 DELHI 36, wherein it was held in para 15 :
"15. ......In any case S. 54, T. P. Act, is still in force and cannot be ignored. Nobody can call himself as owner by purchase on the basis of agreement to sell and the power of attorney executed by alleged vendor in favour of the prospective purchaser-cum- attorney in the absence of a registered sale deed. Thus there ought to have been a registered deed of CS No. 150/11 M/s. Atma Ram Properties P. Ltd. Vs. M/s. P. S. Jain Co. Ltd. Page 12 sale by Nasiruddin in favour of the appellant to confer rights of ownership on him......."
12. Ld counsel for the defendant/applicant relied upon Mohan Behari Mathur & Ors. Vs Gopal Kishan & Ors 2009 (110) DRJ 499, where in para 17 it was held :
"17. As we have already noted herein earlier that in allowing the amendment of the written statement a liberal approach is a general view when admittedly in the event of allowing the amendment the other party can be compensated in money. Technicality of law should not be permitted to hamper the Courts in the administration of justice between the parties. In the case of L.J. Leach and Co. Ltd. v. Jardine Skinner and Co., MANU/SC/0009/1957, this Court observed "that the Courts are ore generous in allowing amendment of the written statement as the question of prejudice is less likely to operate in that event". In that case this Court also held "that the defendant has right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment the other side should not be subjected to serious injustice."
While allowing this application, the Supreme Court has also observed that the merit of the case is not decided just by allowing the amendment in the written statement."
She further relied upon Baldev Singh and others Vs. Manohar Singh and another (2006) 6 supreme Court Cases 498, where in para 15 it was held :
"15. ..... It is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. Accordingly, in the case of amendment of written statement, the courts are inclined to be more liberal in CS No. 150/11 M/s. Atma Ram Properties P. Ltd. Vs. M/s. P. S. Jain Co. Ltd. Page 13 allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter case."
She further relied upon Usha Balashaheb Swami & Ors. Vs. Kiran Appaso Swami & Ors. AIR 2007 Supreme Court 1663, where in para 18 it was held :
"18. It is equally well settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable."
She further relied upon Sumesh Singh Vs. Phoolan Devi & Ors. AIR 2009 Supreme Court 2831, wherein it was held in para 9 :
"9. It is true that ordinarily, an amendment of pleadings should not be allowed by reason whereof a party to the suit would resile from the admission made by him in the same proceedings at an earlier stage. This aspect of the matter has been considered in Gautam Sarup V. Leela Jetly & Ors [(2008) 7 SCC 85] wherein it was held :
"28. What, therefore, emerges from the discussions made hereinbefore is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other."
She further relied upon Hawkeye, Protection and Detective Services Pvt. Ltd. Vs. New Delhi Municipal Council and others CS No. 150/11 M/s. Atma Ram Properties P. Ltd. Vs. M/s. P. S. Jain Co. Ltd. Page 14 1996 I AD (DELHI) 214, where in para 4 it was held :
"4. It is well settled that amendments that are necessary and relevant for adjudicating the matter in controversy should not be disallowed simply because the same are belated, especially when the other side can be compensated with cost. Amendments have even been allowed in cases where an admission was erroneously made provided there was sufficient explanation for the same. The ultimate objective being to subserve and secure the ends of justice rather than to defeat the same on technical grounds........"
13. Ld counsel for the applicant/defendant further relied upon M/s. Estralla Rubber v. Dass Estate (Private) Ltd. JT 2001 (7) SC 657, where in para 5 it was held :
"......... Assuming that there was some admission indirectly, it is open to the defendant to explain the same. Looking to the proposed amendments it is clear that they are required for proper adjudication of the controversy between the parties and to avoid multiplicity of judicial proceedings. ........"
This judgment as cited by the ld counsel for the defendant goes against the defendant/applicant itself inasmuch as the applicant itself has made direct admissions regarding the landlord, tenant relationship and its states is of a tenant at the suit property. In this case, there is no question of indirect admission but direct admissions have been made not only in the written statement but in various applications and pleadings filed before this court as observed herein and also petitions filed before the Hon'ble High Court as well as before the Hon'ble Supreme Court.
14. Perusal of file shows that issues were framed in this case way back on 13/05/1993. Ld. counsel for the plaintiff further submits that an application under Order 12 Rule 6 of CPC for judgment on admission was moved on behalf of the plaintiff on 14/05/1997. The said CS No. 150/11 M/s. Atma Ram Properties P. Ltd. Vs. M/s. P. S. Jain Co. Ltd. Page 15 application is still pending adjudication. He further submits that the said application was filed as tenancy was admitted by defendant no. 1 in the written statement. The very basis of the application moved by the plaintiff under Order 12 Rule 6 of CPC is the admitted relationship of landlord and tenant between the parties.
15. Ld counsel for the plaintiff further submits that lease deed between the parties was executed on 05/01/1978 and defendant no. 1 cannot be allowed to go beyond the written contract entered into between the parties and further submits that Section 91, 92 of Indian Evidence Act has laid down that if terms of contract reduced into form of a document then any oral evidence has to be excluded. Ld counsel for the plaintiff in support of this contention further relied upon R. Bhaskar Bhatt- Appellant Versus Hindustan Petroleum Corporation Limited, Chennai-Respondent, Madras High Court in O.S.A. No. 276 of 2000, D/d 28.3.2000, wherein it was held in para 13.7 :
"13.7 It is an accepted principle of construction that the sense and meaning of the parties in any particular part of instrument may be collected ex antecedentibus consequentibus; every part of it may be brought into action in order to collect from the whole one uniform and consistent sense, if it is possible, as held by the Apex Court in Provash Chandra v. Biswanth Bannerji, A.I.R. 1989 S.C. 1834 and in construing a contract, the Court therefore, must look at the words used in the contract unless they are such that one may suspect that they do not convey the intention correctly. If the words are clear, there is very little the Court can do about it."
16. Ld counsel for the plaintiff further submits that this document has been interpreted earlier in this case and accordingly the Hon'ble High Court has already passed order in F.A.O. (O.S.) 62/95 on 16/12/1996 and thus any contention raised by defendant no. 1 at this stage covers CS No. 150/11 M/s. Atma Ram Properties P. Ltd. Vs. M/s. P. S. Jain Co. Ltd. Page 16 under the principle of res judicata and defendant must be estopped from raising any further contention upon the interpretation of lease deed entered into between the parties. He further relied upon R. V. Bhupal Prasad (D-1)-Appellant Versus Saleha Begum alias Shehensha Begum-Respondent, Andhra Pradesh High Court in L.P.A. No. 99 of 2001, D/d. 3.8.2001, wherein it was held in para 9 :
"9. ......the interpretation of the above clause in Ex. A-63 would be binding precedent, if not res judicata because in Anjaneyulu v. Rmaiah, AIR 1965 AP 177 a Full bench of this Court held that interpretation of a material document in a prior proceeding between the same parties even if does not operated as res judicata would be a binding judicial precedent in a subsequent proceeding between the parties based on that document......"
17. This court further referred the law laid down in Vyas Aqua Products Pvt. Ltd. v. Uco Bank 2001 (90) DLT 137, wherein the Hon'ble High Court has held in para 4 :
" Ld. Counsel has rightly drawn support from M/s Modi Spinning & Weaving Mills Co. Ltd. and Another /s. M/s Ladha Ram & Co., AIR 1977 SC 680 in which it was held that an amendment which seeks to displace the plaintiff completely from the admissions contained in the written statement, ought not to be allowed..."
In Joginder Singh v. Gurdeep Singh, AIR 2007 Delhi 278 it was held in para 9 that:-
" Power of amendment no doubt is wide but like all discretionary powers, has to be exercised with care and caution balancing equities and for doing justice to both the parties. An application for amendment moved in and faith just to prolong litigation, create obstacles and cobwebs should be rejected. Leniency in such circumstances rather than serving cause of justice, causes delay and increases backlog of cases. What the appellant seeks by the amendment is to virtually withdraw his admission regarding the market value of the properties and raise CS No. 150/11 M/s. Atma Ram Properties P. Ltd. Vs. M/s. P. S. Jain Co. Ltd. Page 17 objection to the same. Admissions can be explained but on justifiable, good grounds and on cause being explained, why earlier a different statement was made..."
In Rajinder Gopal v. Gowarsons Publishers 2000(3) AD ( Delhi) 203, it was held by the Hon'ble High Court in para 9 :
" ... Having not done so in the written statement, the stand taken in the application for amendment in para 7 and other consequential amendment challenging the ownership of the petitioner, rate of rent etc. amounts to gross abuse of process of Court specially taking into consideration the fact that the application in question was filled after the petitioner has filed an application under Order 12, Rule 6 of CPC. It also amounts to dilatory tactics. As a matter of fact the respondent wants to retract from the admission which the respondent has made in the original written statement..."
In R. Gupta v. Nirmal Nanda 1988 (35) DLT 206, it was held by the Hon'ble High Court in para 4 :
" ... the Supreme Court held that such an amendment cannot be allowed which had the effect of not only withdrawing of admissions already made by the defendants but also of displacing the case of the plaintiff completely..."
In Kali Charan v. Ishwar Dass 2001 (93) DLT 304, it was held by the Hon'ble High Court in para 11 :
"... it appears that the defendant / appellant's intention became dishonest only after defendant No. 2 expired and after the plaintiff filed application under Order 12 Rule 6 CPC seeking decree on admission since on the death of defendant no. 2 leaving no other heir except the plaintiff and defendant No. 1, no other defence remained available with him to resist plaintiff's suit. Proposed amendment thus sought by defendant seeking to repudiate clear admission is motivated to deprive the plaintiff of valuable right accrued to him and cannot be allowed in terms of the decision of the Supreme Court in M/s Modi Spinning and Weaving Mills Co. Ltd. and another v. M/s. Ladha Ram and Company, Air 1977 SC
680."
The Hon'ble Delhi High Court in Gopi Dargan v. Praveen Kumar CS No. 150/11 M/s. Atma Ram Properties P. Ltd. Vs. M/s. P. S. Jain Co. Ltd. Page 18 2012 (187) DLT 546 has held in para 5 :
"5. Reliance by learned Counsel for the petitioner on the judgment of Sushil Kumar fain v. Manoj Kumar, V (2009) SLT 1: III (2009) CT 55 (SC) : (2009) 14 SCC 38 and Raj Kumar Guawora through L.Rs v. M/s S. K. Sarwagi and Co. Pvt. Ltd., III (2009) CLT 155 (SC) : (2009) SLT 786: Air 2008 SC 2303, is misplaced. There is no doubt that the law of the amendment has to be liberally construed and this is a hand maid of procedure; nevertheless if the complexion of the case is changed or by way of an amendment a party is seeking to withdraw an admission which admission had accrued in favour of the plaintiff; such, an amendment should be disallowed. Impugned order in no manner suffers from any infirmity. Dismissed."
18. Defendant no. 1 claimed itself as owner of the suit premises only on the basis of a meeting held between Director of defendant no. 1 and Sardar Khushwant Singh. Prior to that, it is own admission of the defendant that it never dreamed as owner of the suit premises but the unfortunate part is that it is not the case of defendant no. 1 that it had ever received any advice from any of its counsels, as perusal of file shows that counsels remain changed during the years nor it is the case of defendant no. 1 that any other Director of defendant no. 1 had ever advised or discovered the fact of claiming ownership qua the suit premises. No affidavit of any of the counsel has been filed. It is not the case of defendant no. 1 that it had received a wrong advice from any of its counsels. Moreover, defendant no. 1 also not filed any affidavit or letter of Sardar Khushwant Singh regarding any meeting took place between the Director of defendant no. 1 and Sardar Khushwant Singh wherein it was disclosed that defendant no. 1 is the owner of the suit premises. Moreover, defendant no. 1 sub-letted the suit property to Punjab & Sind Bank. This lease deed was executed between defendant no. 1 and Punjab & Sind Bank in the year 1997 wherein defendant no. 1 again represented as lessee but not the owner CS No. 150/11 M/s. Atma Ram Properties P. Ltd. Vs. M/s. P. S. Jain Co. Ltd. Page 19 of the suit premises. Moreover, on the record there is a certified copy of sale deed executed by Sardar Khushwant Singh, Brigadier Gurbaksh Singh in favour of the plaintiff and wherein it is mentioned about the lease in favour of defendant no. 1 by Sardar Khuswant Singh and Brigadier Gurbaksh Singh. No question can be there to deny the title of the plaintiff by Sardar Khushwant Singh because the document executed by him years back in favour of the plaintiff. This document has not been set aside by any of the court and, therefore, the validity of this document is remained unchallenged. Moreover, the Hon'ble Supreme court in para 15 of Suraj Lamp & Industries Pvt. Ltd. V. State of Haryana & Anr. AIR 2012 Supreme Court 206 held :
"15. Therefore , SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M. Jain v. Canara Bank, 94 (2001) DLT 841, that the "concept of power of attorney sales have been recognized as a mode of transaction " when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law."
It was further held in para 16 of the said judgment "16. We therefore reiterate that immovable property can be legally and lawfully transferred / conveyed only by a registered deed of conveyance. Transactions of the nature of 'GPA sales' or 'SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to CS No. 150/11 M/s. Atma Ram Properties P. Ltd. Vs. M/s. P. S. Jain Co. Ltd. Page 20 transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales."
Thus, ownership of a suit property can be transferred only by way of a registered document not by any conjecture, oral or any other mode of transfer. Moreover, as per The Limitation Act, 1963, defendant no. 1 has lost all rights as per The Limitation Act, 1963 even to claim the ownership of the property after more than continuance 17 years of litigation and also earlier 12 years. For these 29 years throughout, defendant no. 1 represented itself to world at large only as a lessee not as owner of the suit premises.
19. The case law as relied upon by the ld counsel for the defendant and discussed herein above is not going to help in any manner to the defendant as the same is not applicable to the facts of the present case. The judgment as relied upon by the defendant as Mohan Behari Mathur & Ors. Vs. Gopal Kishan & Ors (supra), wherein it was held that the defendant has a right to take an alternative plea in defence. However, in this case, the defendant is not going to take an alternative plea and entirely is going to change the nature of the defence as now the case of the defendant claiming its right as a tenant but by amendment the defendant is going to claim the right qua the suit property as owner. Similarly, Baldev Singh and others Vs. Manohar Singh and another (supra) is not going to help the defendant. On the similar ground, the other judgments as referred by the ld counsel for the defendant are not going to help the defendant as defendant by present application is seeking to change the nature of the defence as well as to withdraw its admission as tenant in this case.
20. In such circumstances, this court is of the considered opinion that the CS No. 150/11 M/s. Atma Ram Properties P. Ltd. Vs. M/s. P. S. Jain Co. Ltd. Page 21 present application has been moved by defendant no. 1 only to create a fresh defence or to project a fresh case in this case after the judgment passed by Hon'ble Supreme Court in P. S. Jain Vs. Atma Ram to avoid any other adverse order in the case.
21. Therefore, the application has no merits and the same is dismissed.
However, the court is anguish to see that for the last more than six years, the case is dragged for the present application as the present application was filed by defendant no. 1 in October, 2006 i.e. about six years ago and the disposal of this suit could not take place for six years as the present application was pending for years. The suit has been filed around 23 years ago. This court is of the considered opinion that defendant no. 1 has wasted precious time of this court for about six years only to delay the disposal of the suit. The court cannot lost the sight to the fact that in this case Sh. Prabhash Jain who is Director of defendant no. 1 has taken somersault before this court only to buy the time for the suit property. In Sumant Agarwal Vs. HDFC Bank Ltd & Ors RFA 568/2010, the Hon'ble Delhi High Court has held in para 5:
"In terms of the recent judgment of the Supreme Court in the case of Ramrameshwari Devi and Ors v. Nirmala Devi and Ors. (2011) 8 SCC 249, Courts should impose actual costs so that a successful party is compensated. I am also empowered to impose actual costs in terms of the Volume V of the Punjab High Court Rules and Orders (as applicable to Delhi) Chapter VI Part I Rule 15."
This court cannot shut its eyes towards the very fact that all the pleadings including written statement and applications as observed and discussed herein above were filed with the affidavit of Sh. Prabhash Jain and the present application along with supporting affidavit was also filed under the signature of Sh. Prabhash Jain. Thus, CS No. 150/11 M/s. Atma Ram Properties P. Ltd. Vs. M/s. P. S. Jain Co. Ltd. Page 22 it cannot be said that due to change of the person, there might be some confusion on part of the defendant to submit the present application with entirely new ground. Thus, defendant no. 1 has moved this application only for the reasons mentioned herein above and to delay the disposal of the suit.
22. Therefore, in view of law laid down by the Hon'ble Delhi High Court, this application is dismissed with a cost of Rs. 50,000/-, out of which Rs. 25,000/- shall be deposited with DLSA and Rs. 25,000/- shall be paid to the plaintiff, as this court is of the further considered opinion that after contesting the litigation not only before this court but also before the Division Bench of the Hon'ble High Court as well as the Hon'ble Supreme Court, upon the affidavit of the same person i.e. Sh. Prabhash Jain filed and he tried to misled this court. For this reason, this court has imposed such a heavy cost with a caution to the defendant that in future defendant no. 1 should not move frivolous application causing wastage of precious time of the court. It is clarified that in case cost as imposed is not paid by defendant no. 1 on the next date of hearing, the defence of defendant no. 1 shall be struck of.
Announced in the open (Jitendra Kumar Mishra) court on 29/08/2012. Additional District Judge-09 Central District,Tis Hazari Courts Delhi CS No. 150/11 M/s. Atma Ram Properties P. Ltd. Vs. M/s. P. S. Jain Co. Ltd. Page 23