Delhi High Court
Syndicate Bank vs I.K. Malik on 1 September, 1995
Equivalent citations: 1995IVAD(DELHI)267, 60(1995)DLT376
Author: Manmohan Sarin
Bench: Manmohan Sarin
JUDGMENT Manmohan Sarin, J.
(1) The petitioner assails the order dated 8.5.1995 of Shri I.S. Mehta, Additional District Judge, Delhi, dismissing their application under Order Vi, Rule 17 Civil Procedure Code . for amendment of written statement. The facts in brief are:- (I)The respondent has filed a suit for possession and recovery of damages mesne profits in respect of premises No. C-17, Vasant Vihar, New Delhi, which were let out to the petitioner in the year 1973. The respondent claims to have terminated the tenancy of the petitioner vide a notice dated 15.11.1992. The petitioner in the written statement filed in March, 1993, averred termination of the tenancy was not in accordance with law. Further that the petitioner was in possession of the tenanted premises and the adjacent premises C-18, for the last 20 years under an oral agreement and the tenancy continued. The oral agreement to lease was a joint one and also for property No. C-18. This was to provide a banking hall on the ground floor and the basement, since individually premises No. C-17 and C-18 were unsuitable for the petitioner. The unilateral alleged termination by the respondent of tenancy of premises in suit was, pleaded as invalid apart from being against law. It was averred that from the very inception both the premises C-17 and C-18 were being used as one tenanted premises, though the rent was paid separately for both the premises to the respective landlords. (ii) The petitioner also averred in the written statement that the respondents and landlord of premises No. C-18 had orally agreed with the petitioner to lease out the premises with the petitioner having option to renew the lease after every 5 years with suitable enhancement in the rate of rent and this arrangement had been going on for last 20 years. The respondents' contention that petitioner was a monthly tenant was therefore refuted and it was stated that the existing agreement was continuing and the respondent had no right to terminate the same. (iii) The respondent after filing of the written statement in August 1994, sought amendment in the written statement to raise a preliminary objection with regard to the constitutional validity of Section 3C of the Delhi Rent Control Act. The petitioners further sought to amend the written statement to state that no valid legal notice as required under the Transfer of Property Act had been served upon the petitioner. The Trial Court in view of the Apex Court having upheld constitutional validity of the Section 3C as well as the pica regarding the validity of termination notice being already there in the written statement, dismissed the application for amendment. (iv) The petitioner has now filed the second application under Order Vi, Rule 17 Civil Procedure Code for amendment of the written statement. The amendments sought by the petitioners are in paras 5 and 6 of preliminary objection. Para No. 8 is sought to be added to preliminary objections. An amendment in para 3 of the written statement is also sought. The amendments sought by the petitioner are to the following effect:- (a) The amalgamation of Premises No. C-l 7 and premises No. C-J 8 Vasant Vihar, New Delhi by the respective landlords with prior permission from Delhi Development Authority, was one of the conditions to the petitioner being put in possession of the tenanted premises. There was only one entrance through premises No. C-l 7 to the tenanted premises. The petitioners seek to supplement the plea that the unilateral termination of the tenancy of the suit premises is illegal and not enforceable. (b) The second amendment sought js that the tenancy originally created in 1973 was renewed w.e.f. 1.6.1983 for a period of 10 years with the option to increase the rent by 25% after completion of first five years of the lease and that the renewed tenancy is continued up to 1993. Consequential changes based on the aforesaid amendments are sought to be made as observed earlier in paras 5 and 6 of the preliminary objection. Para 8 of preliminary objection is also sought to be added. The consequential changes are also .sought to be made in paras 2 and 3 of the written statement (2) The petitioner justifies the amendments sought on the ground that few years ago there was a fire in its zonal office and some of the record was burnt and the partially burnt record was shifted to various offices. Written statement was filed in the absence of complete facts, correspondence and documents, which were not traceable at that time. It is submitted that the petitioner in fact has been able to locate some of the records found in partially burnt condition. The records now traced show that the premises Nos. C-17 and C-18 were amalgamated into one by prior permission from DDA.
(3) Counsel for the petitioner states that the aforesaid amendments do not in any manner change the nature of the case or introduce any inconsistent plea. The said amendments only seek to explain and clarify the original cause of action. These amendments are necessary for determining the matter in controversy.
(4) Counsel for the respondent has vehemently opposed the amendment application as being a malafide one with the sole object of delaying the prosecution of the suit. The petitioner had failed to disclose even the date on which the fire had allegedly occurred and why the amendments presently sought, could not be sought at the time when the first amendment application was moved, which was dismissed by the Trial Court on 28.10.1994. As for the amendments sought in para l(iv)a, the basic averments are already there in the written statement and the amendments sought are absolutely unnecessary as evidence with regard to the averments made can always be led.
(5) Counsel for the petitioner relies on 1957 Scr 595 Pirgonda Hingonda Patil v. Kalgonda Shidgonda Patil And Others. The 'Apex Court in this case held that additions of further and better particulars of a claim regarding title should be permitted by way of amendment as it did not alter the nature of relief. The amendment in this case was allowed even though a fresh suit on the date of amendment would have been barred by limitation. Counsel next relied on , AX. Gupta & Sons Ltd. v. Damodar Valley Corporation Ltd. The ratio of the said judgment is that the parties are not allowed to set up a new case or new cause of action by way of amendment, particularly when a suit on the new case or cause of action would be barred. However, where amendment did not constitute the addition of a new cause of action or raising a different case, but amounted merely to a different or additional approach to the same facts the amendment should be allowed even after expiry of the statutory period of limitation. Reliance was next placed on Seth Nanakchand Shadi Ram v. Aminchnd Pyare Lal to the effect that amendments to elucidate or in amplification of averments in plaint are allowable. Amendments which were in the nature of perfecting the plaintiff's case already set up were allowable. Counsel also relied on , V.C. Rishi v. S.L. Saluja And Others, in this case the Court allowed the amendment holding that the amendment application clarifying and giving particulars of facts already stated should be allowed because it helped in proper and effective determination of the dispute. It also avoided multiplicity of proceedings.
(6) Counsel for the respondent cited in opposition titled Randhir Singh v. Kamlesh and Others opposing vehemently the second amendment sought by the petitioner to plead that the tenancy had been renewed for a period of 10 years, as being contrary to the earlier plea of oral tenancy being renewed every five years. Counsel submitted that a lease of immovable property as well as its renewal were required to be duly executed on a stamp paper and registered. An amendment to plead that the tenancy had been orally renewed for a period of ten years would be wholly unsustainable and against law and such amendment, which is against the provision of law should not be permitted. A liberal approach for allowing amendments did not mean that the principles in this regard were to be given a go by. Counsel for the respondent also relied on titled K. Raheja Construction Ltd. v. Alliance Ministries to submit that the Apex Court had declined, the amendment to seek the relief of specific performance in a suit for permanent injunction, which was belatedly sought after seven years, being barred by limitation. The principles governing the grant of amendments are fairly well settled. All amendments which are necessary for a proper and effective adjudication of the matter in controversy are to be allowed. Amendment is not to be refused simply because it is belated or there has been an omission or negligence of the party concerned. The affected party can be compensated by costs. Amendments resulting in setting up of an altogether new case or different cause of action are not be allowed. Lastly amendments which are malafide can be disallowed.
(7) Let us consider the amendments sought by the petitioner in the light of the aforesaid principles earlier and the ratio of the decisions cited. The amendments sought in para 1(iv)a with regard to the plea of invalidity of the termination notice, the petitioner had already pleaded the factum of both the premises C-17 and C-18 having been taken for joint utilisation as off ice. The petitioner now wishes to further plead that the respondent and the landlord of the adjacent premises obtained an order of amalgamation from D.D.A. Further there was just one entrance. The amendments sought is in the nature of further amplification and would even otherwise be necessary and helpful in effective adjudication of the matter in controversy. The Trial Court therefore acted with material irregularity in refusing the amendments in this regard by holding that the plea sought to be raised was new and inconsistent. The said basic plea was already there in the written statement. The amendments sought in this regard deserve to be allowed.
AS regards the amendments regarding renewal of the tenancy and clear categorical averment was made that the petitioners were in possession of the suit and the adjacent premises for last 20 years under an oral agreement, which gave the petitioners the option to renew the tenancy every five years with suitable increase in rent. The petitioner by the proposed amendment wishes to set up the case that the lease has been renewed for a period of ten years with effect from 1.6.1983. Further the renewal was also agreed to by not only the respondent but the landlady Mrs. Janki Rani Malhotra of the adjacent premises. This plea is inconsistent with the specific plea of renewal being every five years of the oral tenancy. Further there was no plea of any renewal for ten years being with the consent of the Mrs. Janki Rani Malhotra, who is not a party to the suit. The justification for this amendment sought is given on the basis of a half burnt internal note from the branch office, the zonal office mentioning that the "lease" of respondent is renewed for a period of ten years, does not inspire confidence. Admittedly there is no written lease or its renewal by a registered written document. Para 6 of the proposed preliminary objection refers to a lease agreement. The respondents criticism in this regard is justified as a plea of oral tenancy renewable at the option, every five years is sought to be changed into the lease having been renewed for ten years by the respondent and Smt. Janki Rani Malhotra, who is not even a party to the suit. The amendments sought in the written statement in this regard are disallowed. The consequential effect of the amendments allowed and rejected would be as under:- (i) Amendment as sought in additional preliminary objection No. 8 of written statement would stand allowed. (ii) Amendment in paras 5 and 6 of preliminary objection remain disallowed as in the order impugned. (iii) In para 2 of the proposed written statement the following lines are disallowed:- "The lease was lastly renewed w.e.f. 1.6.1983 for a period of 10 years with the condition to increase the rent by 25 per cent after completion of first five years of the lease. In terms of the said Agreement entered into between the parties, the rent was increased enhanced by the Defendant Bank. A correct site plan of the existing tenanted premises is filed herewith." (iv) In para 3 of the proposed written statement the following is disallowed:- "The tenancy was lastly renewed w.e.f. 1.6.1983 for a period of 10years with an option to increase/enhancement in the rent by 25 percent after completion of first 5 years i.e. with effect from 1.6.1988 and the said renewed tenancy is continued up to May, 1993. As contained in the said Agreement, the rent was enhanced and accepted by the plaintiffs and Smt. Janki Rani Malhotra, the landlady. Under the said Agreement entered into between the parties, the Defendant Bank has the right to make suitable changes/alterations in the tenanted premises as per its requirements for running its business properly." In view of the foregoing discussion, the revision petition is partly allowed, subject to costs of Rs. 5000 .00 . The Trial Court shall endeavor to dispose of the case as expeditiously as possible. The revision petition stands disposed of.