Punjab-Haryana High Court
Smt. Gian Kaur vs Paramjit Singh on 4 May, 2012
Author: L.N. Mittal
Bench: L.N. Mittal
Civil Revision No. 5372 of 2011 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Civil Revision No. 5372 of 2011
Date of decision : May 04, 2012
Smt. Gian Kaur
....Petitioner
versus
Paramjit Singh
....Respondent
Coram: Hon'ble Mr. Justice L.N. Mittal
Present : Mr. Puneet Jindal, Advocate, for the petitioner
Mr. Sudhir Pruthi, Advocate, for the respondent
L.N. Mittal, J. (Oral)
Gian Kaur has filed this revision petition under Article 227 of the Constitution of India assailing order dated 19.4.2011, Annexure P/5 passed by learned Rent Controller, Jalandhar thereby dismissing the petitioner's application for amendment of ejectment petition.
Petitioner's husband Harnek Singh filed ejectment petition under section 13-B of the East Punjab Urban Rent Restriction Act, 1949 (in short, the Act) against respondent tenant Paramjit Singh seeking his eviction Civil Revision No. 5372 of 2011 -2- from the demised property on the ground that the landlord Harnek Singh was Non Resident Indian and wanted to return to India and needed the demised property to carry on his own business and also for residence.
During pendency of the ejectment petition, original landlord Harnek Singh died. His widow Gian Kaur petitioner herein has been allowed to be impleaded as his legal representative in the ejectment petition vide order dated 2.2.2011, Annexure P/1 passed by the Rent Controller, in spite of contest by the tenant - respondent.
Thereafter petitioner herein moved application Annexure P/2 for amendment of the ejectment petition to plead that the present petitioner is also Non Resident Indian and she was dependent on her husband Harnek Singh and both of them wanted to shift to India and to settle in the demised property at Jalandhar permanently for business as well as for residence and even after death of Harnek Singh, the present petitioner required the demised property (which is Shop-cum-Flat) for business and residence.
Respondent - tenant by filing reply Annexure P/4 opposed the amendment application. Averments made in the amendment application were controverted. It was pleaded that by amendment, the present petitioner wanted to set up a new case.
Learned Rent Controller vide impugned order Annexure P/5 dismissed the amendment application moved by the petitioner who has, Civil Revision No. 5372 of 2011 -3- therefore, filed this revision petition.
I have heard learned counsel for the parties and perused the case file.
Counsel for the petitioner contended that proposed amendment has been necessitated by death of Harnek Singh during pendency of the ejectment petition. It was also contended that the present petitioner was dependent on Harnek Singh, the original landlord and both of them intended to shift to India. Reliance has been placed on judgment of Hon'ble Supreme Court in Seshambal (dead) Through LRs vs. M/s Chelur Corporation Chelur Building & Ors., 2010(2) Civil Court Cases 56 to contend that the present petitioner being dependent of Harnek Singh has right to pursue the ejectment petition by amending it for her own necessity.
On the other hand, counsel for the respondent contended that the present petitioner by amendment wants to set up a new case as in the original eviction petition, Harnek Singh did not plead that his wife i.e. present petitioner also wanted to shift with him to India. Counsel for respondent also relied on judgment of Hon'ble Supreme Court in the case of Seshambal (supra) and also cited judgment of this Court in the case of Raj Kumar Vij vs. Hem Raj Singla and others, 2008(1) R.C.R. (Civil) 44 to contend that proposed amendment of ejectment petition cannot be allowed.
I have carefully considered the rival contentions. Counsel for Civil Revision No. 5372 of 2011 -4- both the parties have relied on judgment of Hon'ble Supreme Court in the case of Seshambal (supra). However, observations in the said judgment clinch the matter in favour of the petitioner herein. In that case, husband and wife had filed ejectment petition on the ground of personal necessity. Both of them died issueless during the proceedings. In these circumstances it was observed that there being no dependent of the original landlords, eviction could not be ordered. However, at the same time, it was also observed that although requirement pleaded in the eviction petition by the original petitioners was their own personal requirement and not the requirement of the members of their family whether dependent or otherwise, yet if the deceased landlords had any dependent member of the family, then even in the absence of pleading, the requirement pleaded in the original eviction petition could be extended also to the dependent member of their family. Thus, Hon'ble the Supreme Court went to the extent of observing that even in the absence of pleading, the requirement could be extended to the requirement of dependent family member of the landlord who died during the pendency of ejectment petition. In the instant case, the petitioner herein is seeking to even plead her own requirement by making amendment in the ejectment petition and therefore, there is no reason to decline the same. Even otherwise, it was petitioner's husband who had filed the original ejectment petition for shifting back from Canada to India Civil Revision No. 5372 of 2011 -5- and in these circumstances, it may be said that the petitioner herein, who is wife of the original landlord petitioner Harnek Singh, would also have shifted with him to India.
Judgment of this Court in the case of Raj Kumar Vij (supra) cited by counsel for the respondent has also no applicability to the facts of the case in hand because in that case, need of members of family of the landlady since deceased was not pleaded and therefore, legal heirs were held not entitled to evict the tenant. In the instant case, however, present petitioner by amendment of eviction petition wants to plead her necessity. There is, therefore, no ground to decline the same.
Even otherwise, law of amendment of pleadings is liberal. Amendment is always necessitated because of omission of a plea in the original pleading. In the instant case, there is no reason to deny amendment of the ejectment petition sought by the petitioner. Her husband who was the original landlord - petitioner has died during the pendency of the eviction petition and therefore, by amendment, the present petitioner wants to set up the plea of her own requirement of the demised premises.
Thus, examined from any angle, proposed amendment of ejectment petition has to be allowed. Impugned order of learned Rent Controller declining the proposed amendment of the ejectment petition suffers from illegality and jurisdictional error. Learned Rent Controller Civil Revision No. 5372 of 2011 -6- refused to exercise jurisdiction which vested in him to permit proposed amendment of the ejectment petition. Impugned order of the Rent Controller is thus, completely unsustainable in the eyes of law.
As a necessary consequence of the discussion aforesaid, the instant revision petition is allowed. Impugned order Annexure P/5 passed by the Rent Controller is set aside. Application Annexure P/2 moved by the petitioner herein for amendment of ejectment petition is allowed and petitioner is permitted to make proposed amendment in the ejectment petition.
( L.N. Mittal )
May 04, 2012 Judge
'dalbir'