Delhi High Court
Ganeshi Lal vs Nand Lal And Ors. on 16 October, 1995
Equivalent citations: 1995IVAD(DELHI)550, 60(1995)DLT622
Author: Manmohan Sarin
Bench: Manmohan Sarin
JUDGMENT Manmohan Sarin, J.
(1) The petitioner by this revision petition assails order dated 9.5.1995, passed by Shri Kanwaljeet Arora, dismissing the application for amendment of the written statement.
(2) The facts giving rise to the revision petition may be recapitulated :- (I)The father of the respondents, Shri Asa Ram had filed a suit for ejectment and recovery of arrears of rent of the defendant/petitioner from one of the shops in Wz 507, Palam Enclave in the Revenue State of Village Palam, Delhi. The shop was let out to the petitioner/ defendant at a monthly rent of Rs. 175.00 . (ii) The respondent claims to have terminated the tenancy of petitioner and filed the suit on his failure to vacate. One of the averments in para 4 of the plaint was that the premises in suit was situated in the rural area in the revenue estate of village Palam Enclave where Delhi Rent Control Act had no application. Further that the provisions of Delhi Rent Control Act had not been extended to the rural areas. The petitioner had denied this averment in written statement, claiming Delhi Rent Control Act to be applicable. A preliminary objection was also raised of the suit for possession being barred Under Section 50 of the Delhi Rent Control Act. Accordingly, an issue was framed on this namely whether this Court has no jurisdiction to try the suit in view of provisions of Section 50 of the Delhi Rent Control Act 1958? (iii) The petitioner in January 1989, moved an application Under Section 151 read with Section 50 of Delhi Rent Control Act for dismissal of the suit or its abatement. The said application was opposed by the respondent inter alia on the ground that an issue had already been framed. The predecessor of the learned Civil Judge dismissed the application on 6.4.1992, holding that the question regarding the applicability of the Delhi Rent Control Act, 1958 is a mixed question of Law and fact and the issue cannot be tried as a preliminary issue. (iv) The petitioner in November 1994 moved the present application wherein he sought to add by way of preliminary objection that jurisdiction of the civil Court was barred under Section 185 of the Delhi Land Reforms Act since the property was situated on land in the revenue estate of village Palam. Further that the land would be agricultural land and the provisions of Land Reforms Act would apply even if constructions were made on the land. The details of the amendments sought in the written statement are given in para 7 of the application. (v) The application was dismissed by the learned civil Judge vide the impugned order. The learned Civil Judge after recording the facts and the rival contentions and commenting on the provisions of Order Vi Rule 2, Order Vi Rule 4 and Order Vi Rule 17 Civil Procedure Code observes that a party cannot be allowed to do a somersault and to take up inconsistent pleas or resile from admissions made, by way of amendment. (vi) The learned Civil Judge proceeds to hold that the petitioner's contention in the application regarding suit being barred under Section 50, Delhi Rent Control Act has been dismissed. The petitioner therefore cannot now be permitted to take up a wholly inconsistent plea to what had been stated earlier. The amendment application was dismissed by the impugned order.
(3) Mr. B.D. Kaushik, learned Counsel for the petitioner assails the order as one vitiated by material irregularity in rejection of the amendment application and failure to exercise jurisdiction by non appreciation of the fact that there was no change in the nature of the defense and no prejudice would be caused to the respondent, since his evidence was yet to commence. There was no question of somersault or resiling from alleged admission as the petitioner only wanted to add a legal objection, which was in the nature of an alternative plea and was permissible. Learned Counsel for the petitioner also urged that for the adjoining land the Delhi Land Reforms Act has been held as applicable in a judgment in Rca 591/92 decided on 9.2.1995. Counsel for the petitioner placed reliance on Chetan Lal Jain v. Manohar Lal Vohra, , Mohd. Salil Sahib v. T.C. Adam Air 1979 Madras 368 and Regal Traders Pvt. Ltd. and Anothers v. Lt. Governor of Delhi and Others, .
(4) Mr. Arun Verma, learned Counsel for the respondents in reply labelled the application for amendment as an abuse of the legal process and a malafide one. It was stated that the suit was filed in December 1984 and it was still at the stage of commencement of evidence. The petitioner was only interested in delaying the suit. The present amendment application had been filed belatedly in November 1994, after the dismissal of the application under Section 151 Civil Procedure Code in April 1992. Counsel also urged that the property in suit was a tenanted shop and the whole plea regarding the applicability of Delhi Land Reforms Act was misconceived and aruse. Property in suit was not an open piece of land. This plea was destructive of and in negation of the petitioner's plea of Delhi Rent Control Act being applicable to the premises in suit. Counsel relied on 1974 (Vol 10) Dlt 227, Mam Raj v. Ram Chander, 1995(111) Apex Decision 760, Mahinder Singh v. Iqbal Kaur Jai Singh v. Union of India in supporting the impugned order.
(5) Having perused the pleadings, impugned order and hearing the learned Counsel for the parties, I am of the view that the amendment application deserves to be allowed. The learned Civil Judge erroneously proceeded on the assumption that the petitioner's contention regarding the provisions of Delhi Rent Control Act being applicable and the Court not having jurisdiction by virtue of Section 50 of Delhi Rent Control Act had been dismissed. The predecessor of the learned Civil Judge had dismissed the application on the ground that the said question was a mixed one of fact and Law and required evidence. Hence it could not be treated as a preliminary issue. There was no rejection of the contention.
(6) The amendments sought are in the nature of adding a new ground of defense by raising a bar on maintainability of a civil suit in respect of land/ property, to which the provisions of Delhi Land Reforms Act apply. It is pertinent to notice that the averment in para 4 of the plaint is "That the premises in suit is situated in the revenue estate of village Palam Delhi Territority. Accordingly, the objection plea with regard to the bar on account of the Delhi Land Reforms Act is sought to be added in the written statement is a matter that requires consideration. This prima facie receives support from the decision in the case Regal Traders Pvt. Ltd. and Anothers v. Lt. Governor of Delhi and Others (Supra). In any case at the stage of allowing the amendment, the merits of the amendment arc not to be considered. The plea sought to be raised is an additional ground and at worst in the nature of an alternate ground. Reference may usefully be made to a decision of this Court in Chander Prakash and Another v. Om Prakash Bajaj and Others, . This Court observed that the amendment of written statement cannot be considered on the same principle as amendment of plaint. The Court approved Haridass v. Kalidass, and observed inter alia that it was permissible to "Add a new ground of defense or substituting or altering a defense does not raise the same problem as adding altering or substituting a new cause of action. Hence the Courts are inclined to the more liberal in allowing amendment of defense than of plaint." In the instant case the amendments sought do not amount to withdrawal of admission or raising inconsistent plea. The amendment are essentially in the nature of raising another legal contention (Ref. Chetan Lal Jain v. Manohar Lal Vohra) which is permissible even at a belated stage. There is no quarrel with the principles laid down in the cases cited by the respondent, for declining amendments. However, these do not help the respondent in the facts of the instant case. The amendments sought is even otherwise necessary for a final adjudication of the matter and to avoid multiplicity of proceedings.
(7) The progress of the suit has been extremely tardy. Although the suit was filed in December 1984, the evidence of the respondent/plaintiff is yet to commence. However, on a perusal of the order sheet, I am unable to accept the respondent's contention that the petitioner alone is responsible for the delays and the amendment sought was malafide. Both the parties, have contributed to the delay apart from the inherent procedural delays entailed in the system. However, Counsel for the petitioner very fairly submitted that the petitioner would cooperate in an expeditious trial of the-suit as may be directed. In view of the foregoing discussion, the revision petition is allowed. The impugned order dated 9.5.1995 set aside. The amendments sought by the petitioner are allowed subject to payment of Rs. 1000.00 as costs to respondent. The Trial Court shall endeavor to complete the trial of the suit and pronounce judgment as expeditiously as possible and preferably by 31st October, 1996. The petition stands disposed of with the above directions.