Delhi District Court
Shri Tara Singh vs Shri Padam Chand Vaish on 27 January, 2022
IN THE COURT OF SHRI GIRISH KATHPALIA,
PRINCIPAL DISTRICT & SESSIONS JUDGE (HQs)
& RENT CONTROL TRIBUNAL (CENTRAL)
TIS HAZARI COURTS, DELHI.
RCT No. 130/2019
SHRI TARA SINGH
SHOP No. 4767-B, LAXMI NAGAR
CLOTH MARKET, FATEH PURI,
DELHI 110006 .....APPELLANT
VERSUS
1. SHRI PADAM CHAND VAISH
S/o SHRI GYAN CHAND
3384, TABELA BALA PRASHAD
BAZAR SITA RAM, DELHI 110006
ALSO AT : 7/13, ANSARI ROAD,
DARYA GANJ, NEW DELHI
ALSO AT : 652, KATRA HARDHYAL,
CHANDNI CHOWK, DELHI.
2. M/s MADAN GOPAL HAR GOPAL
4770, INTER SECTION OF GANESH
BAZAR & LAXMI BAZAR
CLOTH MARKET, CHURCH MISSION ROAD,
FATEHPURI, WARD No. III
DELHI .....RESPONDENTS
Date of filing: 13.07.2015
First date before this court : 14.08.2019
Date of conclusion of arguments : 20.01.2022
Date of Decision : 27.01.2022
Appearance : Shri P.K. Rawal, counsel for appellant
Shri Deepak Gupta, counsel for respondent
JUDGMENT
1. This appeal under Section 38 of the Delhi Rent Control Act assails order dated 29.06.2015 of the learned Additional Rent Controller, whereby application of the appellant objector seeking to RCT No 130/2019 Tara Singh vs Padam Chand Vaish Page 1 of 23 pages GIRISH KATHPALIA Date:
Digitally signed by GIRISH KATHPALIA2022.01.27 13:03:34 +05'30' amend his Objection Application in execution proceedings was dismissed. On service of notice of the appeal, respondent no. 1 landlord entered appearance through counsel. Respondent no. 2 is stated to be proforma respondent being the tenant. I heard learned counsel for both sides and perused the trial court record as well as the written submissions.
2. Briefly stated, circumstances leading to the present appeal are as follows.
2.1 The present respondent no. 1, claiming himself to be the landlord of shop No. 4767, Laxmi Bazar Cloth Market, Fatehpuri, Delhi filed eviction petition under Section 14(1)(b) of the Delhi Rent Control Act against the present respondent no. 2, who filed written statement to the eviction petition, but failed to lead any evidence and ultimately the eviction petition was allowed by the learned Additional Rent Controller against the present respondent no. 2.
2.2 In the course of execution proceedings of the eviction order, the appellant filed Objection Application under Section 25 of the Delhi Rent Control Act. On deciphering the jumbled-up factual matrix presented in the voluminous Objection Application with the help of documents on record, broadly speaking, the case set up by the appellant objector is found to be that for past more than 35 years, it is the appellant objector who was tenant in a portion of the subject property at a monthly rent of Rs. 20/-; that in his eviction petition, the present respondent no. 1 had falsely alleged that the present respondent no. 2 was the tenant and the appellant objector was the RCT No 130/2019 Tara Singh vs Padam Chand Vaish Page 2 of 23 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2022.01.27 13:03:14 +05'30' unauthorized subtenant in the subject property; that the present respondent no. 1 and the present respondent no. 2 in collusion obtained the eviction order against the appellant objector; that the appellant objector became tenant in the subject property as contemplated under Section 2(l) of the Delhi Rent Control Act as he had been inducted as subtenant on the basis of written permission given to the present respondent no. 2; that the appellant objector has been running business from the subject premises under the name and style M/s Mohinder Singh Gurdeep Singh, followed by M/s Tara Singh Mohinder Singh since 1970; that in the year 1970, M/s Mahaliram Lachhmandas, predecessor of the present respondent no. 1 had filed petition under Slum Areas (Improvement & Clearance) Act against the present respondent no.2 and in the said petition, it was specifically stated that the subject property had already been sublet to M/s Sheo Karan Dass Ram Saroop and then to M/s Mohinder Singh Gurdeep Singh; that in the said Slum Areas Act proceedings, the present respondent no.2 tenant appeared and a compromise dated 23.01.1973 was drawn, in which the erstwhile landlord consented that the subject property be sublet to M/s Mohinder Singh Gurdeep Singh; that the said Slum Areas Act petition was allowed to be withdrawn vide order dated 27.02.1973; that in terms of their said compromise, the previous tenant M/s Sheo Karan Dass Ram Saroop vacated the subject property and the appellant objector was accepted as tenant in respect of the subject property; that this fact was well within the knowledge of the present respondent no.1, as after purchasing the subject property from M/s Mahaliram Lachhmandas, he applied for and received certified copies of records of the Slums Authority; that since the present respondent no. 1 colluded with the present RCT No 130/2019 Tara Singh vs Padam Chand Vaish Page 3 of 23 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2022.01.27 13:02:55 +05'30' respondent no. 2 and played fraud upon the court to obtain eviction order, the said eviction order is a nullity in the eyes of the law and is liable to be set aside; that the appellant objector is in exclusive possession of the subject property in his capacity as tenant under permission of the erstwhile landlord from whom the eviction petitioner allegedly purchased the subject property; that therefore the objections of the appellant deserved to be allowed after determination the rights of the appellant objector, holding that the eviction order could not be executed in respect of the appellant objector.
2.3 The present respondent no. 1 filed reply to the Objection Application, thereby denying the contents of the Objection Application and pleaded that the entire story narrated by the appellant objector was false as the appellant objector was always an illegal subtenant inducted in the subject property unauthorizedly by the tenant; that the appellant objector was always aware about the pendency of the eviction proceedings against the present respondent no. 2 and continued to clandestinely watch the same; that the appellant objector was attempting to overreach the court and be put to strict proof of all his allegations; that according to the present respondent no. 1, except for the eviction petition which was decreed on 03.08.2002, he had not instituted any other eviction petition under the Delhi Rent Control Act against anyone qua the subject property; that no compromise took place in any litigation and on 20.03.1973, no erstwhile purported tenant M/s Sheo Karan Dass Ram Saroop vacated the subject property and the appellant objector was not accepted as a tenant or even as a subtenant under compromise recorded on 20.03.1973; that the present respondent no. 2 was never authorized to RCT No 130/2019 Tara Singh vs Padam Chand Vaish Page 4 of 23 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2022.01.27 13:02:37 +05'30' create subtenancy in respect of the subject property and the appellant objector was illegally and unlawfully inducted as subtenant by the present respondent no. 2; that the appellant objector would be bound by the eviction order dated 03.08.2002, being an unauthorizedly inducted subtenant and the Objection Application is liable to be dismissed with exemplary cost.
2.4 In the backdrop of abovementioned rival objection pleadings, the appellant objector filed an application under Order VI Rule 17 CPC on 30.05.2014, seeking to amend the Objection Application, which application was dismissed by way of the impugned order. By way of the said amendment application, the appellant objector pleaded that the records of the eviction proceedings established that the present respondent no. 1 and the present respondent no. 2 had colluded and played fraud in an effort to execute the eviction order against more than 30 occupiers of the subject property, who claim themselves to be tenants in their respective portions; that the present respondent no. 1 never disclosed true facts before the court and concealed vital documents regarding the payment of rent; that the present respondent no. 1 also concealed the filing of petition under Section 19 of the Slum Areas Act, in which compromise had been arrived at in writing, whereby a written permission was given by the then owner/landlord of the subject property to induct the appellant objector as subtenant; that a copy of the said compromise was being annexed with the amendment application; that earlier, copy of the said compromise was not in possession of the appellant objector, so the same could not be placed before the court when the Objection Application was filed; that RCT No 130/2019 Tara Singh vs Padam Chand Vaish Page 5 of 23 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2022.01.27 13:02:17 +05'30' therefore, the appellant objector be permitted to incorporate further facts in the Objection Application as regards the said compromise whereunder permission to sublet was granted; that the said amendment in the Objection Application is necessary for proper determination of the dispute, therefore, the appellant objector be allowed to amend the Objection Application.
2.5 The present respondent no. 1 filed reply to the amendment application, opposing the same on the ground that the amendment application has been brought much belatedly, with the object to protract the proceedings; that the appellant objector is trying to propound a new case by way of amendment; that the appellant objector is trying to take the executing court behind the eviction order which is not permissible; that the amendments sought are not relevant and are of no assistance for adjudication of the Objection Application; that the story of compromise setup by the appellant objector is unbelievable and the documents sought to be filed in that regard are fabricated, therefore the amendment application liable to be dismissed.
2.6 The said amendment application of the appellant objector was dismissed by the Additional Rent Controller by way of impugned order, mainly on the grounds that since the permission to sublet was sought subsequent to inducting the appellant objector as subtenant, the alleged permission was non-consequential; that even in the said compromise deed it is stated that the present respondent no. 2 had prayed to the original owner/landlord for permission to induct a subtenant in the year 1972 whereas according to the objector RCT No 130/2019 Tara Singh vs Padam Chand Vaish Page 6 of 23 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2022.01.27 13:01:59 +05'30' appellant, he is in possession since 1970, which shows that permission to sublet was sought subsequent to subletting, therefore the document is of no use; that the Objection Application was filed on 12.12.2006 and there is no explanation in the amendment application brought after 08 years as to what stopped the appellant objector from filing the alleged compromise deed at the time of filing the Objection Application or soon thereafter; that the document sought to be filed by the appellant objector is neither original compromise deed nor certified copy thereof and is simply a photocopy; and that no order of the court has been filed to show that the said compromise deed was accepted by the court, so taking on record the said document could cause great prejudice to present respondent no. 1.
3. During final arguments, learned counsel for appellant took me through the above material on record and contended that the impugned order of dismissal of amendment application is not sustainable in the eyes of law. It was argued by the learned counsel for appellant that while adjudicating upon an amendment application the court could not venture into deciding merits of the main dispute by holding that permission to sublet sought in the year 1972 was non- consequential. It was argued that the amendment was necessitated because the present respondent no. 1 tried to play fraud on court by obtaining a collusive eviction order and thereafter by falsely denying the compromise arrived at between the parties. It was argued that according to the settled legal position, delay in filing amendment application cannot be a ground to reject the same. Learned counsel for appellant also submitted that in the amendment application it had been clearly explained that earlier the appellant was not in possession RCT No 130/2019 Tara Singh vs Padam Chand Vaish Page 7 of 23 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2022.01.27 13:01:37 +05'30' of the compromise deed. It was further argued that the issue whether the compromise deed is a genuine document or a forged one could not be decided without holding a trial, which was not done in the present case. It was further argued by learned counsel for appellant that no loss much less irreparable loss would be caused to the present respondent no. 1 if the amendment application is allowed because the present respondent no. 1 was already aware about the compromise but did not file the same before the court.
4. On the other hand, learned counsel for respondent no. 1 referred to order dated 07.08.2015 of the Hon'ble Delhi High Court whereby with consent, it was held that the trial court could examine the allegation of fraud, therefore, according to respondent no. 1 this appeal is infructuous. Counsel for respondent no. 1 also referred to order dated 18.11.2016 of the trial court whereby the present respondent no. 1 gave no objection for filing those documents and that being so, according to learned counsel for respondent no.1 there is no scope for amendment of the Objection Application.
5. In rebuttal arguments, learned counsel for appellant objector argued that mere filing of the document, which according to respondent no. 1 is forged one, is not enough unless the pleadings also are amended in an appropriate manner. It was argued that since the learned Additional Rent Controller in the impugned order went on to even deliver findings on merits, the appeal cannot be held to be infructuous because of filing of the documents.
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6. In support of his arguments, learned counsel for appellant placed on record through emails a plethora of judicial pronouncements on each aspect of law on amendment. For the sake of brevity, not each of those precedents is being referred to herein, especially because there is no dispute to the legal propositions as regards the stage at which the amendment application can be brought, the issue of delay, the issue of touching merits of the main dispute etc. However, some of those cited judicial precedents, which are in context, are being cited hereafter.
7. To recapitulate, according to the appellant objector, the present respondent no. 1, claiming himself to be landlord colluded with the present respondent no. 2 tenant and obtained eviction order in the year 2002 concealing from the court that the appellant objector had been inducted as subtenant into the subject property with consent of the erstwhile owner. Since in reply to the Objection Application, the present respondent no. 1 denied that the appellant objector had been inducted as subtenant with consent of the erstwhile owner by way of compromise during Slum Areas Act proceedings, the appellant objector filed an application seeking to amend the Objection Application in order to incorporate specific averments as regards the said compromise and also sought to place on record a copy of the compromise deed. The amendment application was dismissed by the learned Additional Rent Controller mainly on two grounds. Firstly, the learned Additional Rent Controller took a view that the amendment application brought after 08 years could not be allowed because the appellant objector had failed to explain as to why the copy of compromise deed was not filed along with the Objection RCT No 130/2019 Tara Singh vs Padam Chand Vaish Page 9 of 23 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2022.01.27 13:00:57 +05'30' Application. Secondly, the learned Additional Rent Controller delivered a finding that according to the case setup by the appellant objector, he is in possession of the subject property since the year 1970 but the permission was obtained in the year 1972, therefore, the compromise deed was non-consequential.
8. Accordingly, the questions to be examined in this appeal are as to whether the amendment application of the appellant objector was rightly dismissed on account of delay of 08 years in bringing the same; whether the amendment application was rightly dismissed holding the compromise deed to be a non-consequential document; and whether the amendment application deserved to be allowed, as it sought to only elaborate the plea already taken.
9. Historically speaking, on the recommendations of the Committee of Hon'ble Justice Malimath in order to avoid delays in disposal of suits, Order VI Rule 17 CPC was deleted by way of Code of Civil Procedure (Amendment) Act, 1999. But because of public uproar that followed, the provision was revived by way of Code of Civil Procedure (Amendment) Act, 2002. However, in 2002, the legislature added a proviso to Order VI Rule 17 CPC, mandating that no amendment application shall be allowed after the trial has commenced, unless the court comes to the conclusion that despite due diligence, the applicant could not have raised the matter prior to the commencement of the trial.
10. The basic principles for grant or refusal of the amendment, articulated more than a century ago hold the field till date RCT No 130/2019 Tara Singh vs Padam Chand Vaish Page 10 of 23 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2022.01.27 13:00:37 +05'30' and are considered to be correct statement of law by superior courts. The general principle is that the courts at any stage of the proceedings may allow any party to amend the pleadings in such manner and on such terms as may be just for determining the real question in controversy between the parties. It is also well settled that the court should be extremely liberal in granting prayer of amendment of pleadings unless serious injustice or irreparable loss is caused to the other side. It is true that amendment cannot be claimed as a matter of right. But it is equally true that the courts while deciding such prayer should not adopt hypertechnical approach. Liberal approach should be the general rule particularly in the cases where the other side can be compensated with costs. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigations. The first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for determination of the real questions in controversy. If that condition is not satisfied, amendment cannot be allowed and that is the basic test which should govern the courts' discretion in grant or refusal of the amendment. Where it appears to the court that the amendment sought is not a bonafide request, the same should be declined.
11. In the case of Atul Maini Chopra vs Adarsh Bhalla, 2005 (119) DLT 593, an Hon'ble Single Judge (as his Lordship at that time was) on the Original side of the Hon'ble Delhi High Court allowed an amendment application observing that there was nothing in the proposed amendment which could possibly be said to introduce either a new cause of action or to change the nature of the suit or the controversy therein since all that the amendment aimed at was to RCT No 130/2019 Tara Singh vs Padam Chand Vaish Page 11 of 23 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2022.01.27 13:00:19 +05'30' assert that the funds for the purchase of the suit property did in fact flow from the father of the parties, so there was no justification to decline the amendment prayed for. Further, the Hon'ble Single Judge rejected the opposition to the amendment application on the ground of inordinate delay of ten years observing that there indeed is some delay having regard to the fact that the suit was filed somewhere in the year 1994 but the delay in the filing the amendment application occurred on account of exigencies of service of the plaintiff and consequent loss of proper contact with the counsel. The Hon'ble Single Judge further held that while examining an amendment application, the court is not required to consider the proposed amendment on its merits and all that is to be seen is whether the amendment changes the nature of the suit or introduces a new cause of action.
12. In the case of Sampath Kumar vs Ayyakannu & Anr, 2002(7) SCC 559, the Hon'ble Supreme Court reiterated that Order VI Rule 17 CPC confers jurisdiction on the court to allow either party to alter or amend its pleadings at any stage of the proceedings and such amendments as are directed towards determination of the real questions in controversy between the parties shall be permitted to be made. The Hon'ble Supreme Court further reiterated that the question of delay in moving an amendment application should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded and that pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof, but no strait jacket formula can be RCT No 130/2019 Tara Singh vs Padam Chand Vaish Page 12 of 23 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2022.01.27 12:59:56 +05'30' laid down and the fact remains that a mere delay cannot be a ground to refuse a prayer for amendment.
13. In the case of B.K. Narayana Pillai vs Parameswaran Pillai & Anr, 2000(1) SCC 712, the Hon'ble Supreme Court recapitulated the legal position as regards amendment of pleadings and reiterated that all amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence was taken. It was further reiterated by the Apex Court that delay in filing an amendment application should be properly compensated by costs and error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendment.
14. In the case of Olympic Industries vs Mulla Hussainy Bhai Mulla Akberally & Ors., 2009 (10) SCR 338, the Hon'ble Supreme Court reiterated the well settled legal position that mere delay in filing an amendment application is not sufficient to decline amendment request and that where the amendment sought has a bearing on the real controversy between the parties, courts should be generous in allowing the amendments.
15. In the case of LT Foods Ltd. vs Sachdeva & Sons Rice Mills Ltd., 2014 (215) DLT 39, the Hon'ble Division Bench of the Delhi High Court recapitulated the legal position on the issue of RCT No 130/2019 Tara Singh vs Padam Chand Vaish Page 13 of 23 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2022.01.27 12:59:35 +05'30' amendments of pleadings after traversing through various judicial precedents and held thus :
"13. The legal position regarding amendment of written statement is well settled. The principles culled out from various judicial decisions regarding amendment of written statement are being enumerated herein under:-
I The object of Order VI Rule 17 CPC is that the court should try the merits of the case that come before them and should consequently allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to either side.
II The rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in larger interest of doing full and complete justice to the parties before the court. Thus, the court should always give leave to amend pleadings of a party unless it is satisfied that the party applying was acting malafide. The amendment to pleading should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice.
III Amendment sought after substantial delay could be allowed even if barred by limitation if that sub-serves the cause of justice and avoids further litigation. IV While dealing with amendment applications the Courts should not adopt a hyper technical approach. Liberal approach should be general rule particularly in cases where the other party can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. V Amendments should be refused only where the other party cannot be placed in the same position before the amendment but the amendment would cause him an injury which could not be compensated in costs.
VI A prayer for amendment of the plaint and a prayer of written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as RCT No 130/2019 Tara Singh vs Padam Chand Vaish Page 14 of 23 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2022.01.27 12:59:11 +05'30' to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. The aforesaid principle does not apply to the amendment of the written statement. VII In case of amendment of a written statement, the courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice is far less in the former than in the latter. 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.
VIII Inconsistent and alternative pleas can be allowed to be taken in a written statement provided they are not destructive of each other.
IX Mere delay in making an amendment application itself is not enough to refuse amendment particularly when the delay does not cause serious prejudice to the other party and can be compensated in terms of money.
X It would not be open to a party to wriggle out of an admission made by him by seeking amendment of the written statement as admission is a material piece of evidence which would be in favor of a person who would be entitled to take advantage of that admission. However, the admission can be explained and it would be permissible to add rider and/or proviso thereto while keeping the admission intact.
(The afore-noted principles have been culled out by us from the decisions of the Supreme Court reported as AIR 2006 SC 1646 Rajesh Kumar Aggarwal & Ors v. K.K. Modi, AIR 2004 SC 4102 Pankaja & Anr. v. Yellapa (D) by LRs & Ors, 2000 (1) SCC 712 B.K. Narayana Pillai v. Pararaneswaran Pillai, AIR 1957 SC 363 Piragonda Hongonda Patil v. Kalgonda Shidgonda Patil & Ors, (1976) 4 SCC 320 Modi Spg. & Wvg. Mills Co. Ltd. v. Ladha Ram & Co and (2007) 5 SCC 602 Usha Balasaheb Swami v. Kiran Appaso Swami)".
16. In the case of Saif-Ul-Islam Company, L.P. vs Roshan Lal Arora & Anr., 2003 (102) DLT 692, the Hon'ble Single Judge of RCT No 130/2019 Tara Singh vs Padam Chand Vaish Page 15 of 23 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2022.01.27 12:58:51 +05'30' the Delhi High Court reiterated the legal position related to Order VI Rule 17 CPC and held that mere delay and laches in making an amendment application is not a good ground for refusal of the amendment where the amendment applicant does not set up a new case or cause of action; that hypertechnical approach while dealing with an amendment application should not be adopted; and that all amendment of the pleadings should be allowed which are necessary for determination of the real controversies in the suit, provided the proposed amendment does not alter or substitute a new cause of action. In the said case the Hon'ble High Court observed that the amendments sought had been necessitated on account of the facts stated in the written statements by the defendants and the documents filed along with the written statements.
17. In the case of Surender Kumar Sharma vs Makhan Singh, 2009 (10) SCC 626, the Hon'ble Supreme Court held that even if an amendment application was filed belatedly, such belated amendment cannot be refused if it is found that for deciding real controversy between the parties it can be allowed on payment of costs.
18. In the case M/s Estralla Rubber vs Dass Estate (Pvt.) Ltd., CA No. 6327/01 decided by the Hon'ble Supreme Court on 12.09.2001, the Hon'ble Supreme Court reiterated the legal position that the amendment of the pleadings under Order VI Rule 17 CPC is to be allowed if such amendment is required for proper and effective adjudication of the controversy between the parties and to avoid multiplicity of judicial proceedings subject to certain conditions such as allowing amendment should not result in injustice to the other side.
RCT No 130/2019 Tara Singh vs Padam Chand Vaish Page 16 of 23 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2022.01.27 12:58:32 +05'30' The Hon'ble Supreme Court further observed that the proposed amendment in the said case was to elaborate the defence and to take additional plea in support of its case and looking into the proposed amendments it was clear that it was required for proper adjudication of the controversy between the parties and to avoid multiplicity of judicial proceedings.
19. In the case of Ramesh Kumar Agarwal vs Rajmala Exports Pvt. Ltd., 2012 (5) SC 337, the Hon'ble Supreme Court reiterated that since by proposed amendment, plaintiff only wanted to explain how the money was paid, though necessary averment in the form of foundation had already been laid in the original plaint and there was no alteration of cause of action, the amendment deserved to be allowed.
20. In the case Hitesh Bhardwaj vs Shiksha Bharti Educational Society, 2021 LAWPACK (Delhi) 84630, the Hon'ble Delhi High Court reiterated that while considering an amendment application, merits of the plea incorporated are not to be assessed at all.
21. In the case of Bhasin Tobaccos Ltd. & Ors. vs Gambro Nexim (India) Medical Ltd., 2017 (10) AD (Delhi) 239, the Hon'ble Delhi High Court reiterated that while allowing amendment the court should not delve upon the correctness or falsity of the case in the amendment, and the merits of the amendment sought to be incorporated are not to be adjudged at this stage as the same would require a trial.
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22. Similarly, in the case of Vaishali Gaur & Anr. vs Sanjay Sharma, 2014(210) DLT 229, the Hon'ble Single Judge on the Original Side of the Delhi High Court reiterated that while considering an application for amendment, the court is not to examine the merits of the amendment or to consider the strength or weakness of the case of the amendment applicant.
23. One of the numerous judicial pronouncements from the Hon'ble Supreme Court of India, laying down the parameters for deciding the grant or refusal of amendment of pleadings is the case of Revajeetu Builders & Developers vs Narayanswamy & Sons & Ors. (2009) 10 SCC 84, in which the factors to be taken into consideration were enumerated as follows :
"63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment :
(1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bonafide or malafide;
(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) refusing amendment would infact lead to injustice or lead to multiple litigation;
(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendment if a fresh suit on the amended claims RCT No 130/2019 Tara Singh vs Padam Chand Vaish Page 18 of 23 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2022.01.27 12:57:52 +05'30' would be barred by limitation on the date of application.
These are some of the important factors which may be kept in mind while dealing with the application filed under Order 6 Rule 17 CPC. These are only illustrative and not exhaustive."
In the said case the Hon'ble Supreme Court of India held that the first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for determination of the real question in controversy and if that condition is not satisfied, the amendment cannot be allowed. The Hon'ble Supreme Court of India specifically observed that real controversy test is the basic test which should govern the courts' discretion in grant or refusal of the amendment.
24. In the case of Subhash Chand Sethi vs J.K. Jain, {CM (M) 790/2015, decided by Hon'ble Ms. Justice Pratibha Rani of the Hon'ble Delhi High Court on 12.10.2015} also, the Hon'ble Delhi High Court invoked the real controversy test while observing that the question which requires consideration by the court is whether the proposed amendment at the stage of cross-examination of plaintiff was necessary for adjudication of issue in controversy between the parties.
25. In the case of L.C. Hanumanthappa (since dead) by his LRs vs H.B. Shivakumar, {Civil Appeal no. 6595/15, arising out of SLP (Civil) No. 15513 of 2015, decided by the bench of Hon'ble Mr. RCT No 130/2019 Tara Singh vs Padam Chand Vaish Page 19 of 23 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2022.01.27 12:57:32 +05'30' Justice A.K. Sikri on 26.08.2015}, the Hon'ble Supreme Court of India observed thus :
"15. As early as in the year 1900 the Bombay High Court in Kisandas Rupchand vs Rachappa Vithoba, ILR 33 Bom 644 (1900), held as follows :
".... all amendments ought to be allowed which satisfy the two conditions - (a) of not working injustice to the other side and (b) of being necessary for the purpose of determining the real questions in controversy between the parties... but I refrain from citing further authorities, as in my opinion they all lay down precisely the same doctrine. That doctrine as I understand it is that amendments should be refused only when the other party cannot be placed in same position if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same : can the amendment be allowed without injustice to the other side, or can it not?"
26. Falling back to the present case, what is to be seen is as to whether the amendment sought by the appellant objector before the learned execution court was necessary for determination of real questions in controversy. At the cost of repetition, it is to be noted that in the Objection Application filed during execution proceedings of the RCT No 130/2019 Tara Singh vs Padam Chand Vaish Page 20 of 23 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2022.01.27 12:57:12 +05'30' eviction order under Section 14(1)(b) of the Delhi Rent Control Act, the appellant objector alleged that he had been inducted as subtenant into the subject property with the consent of the erstwhile owner in the course of the compromise recorded before the Slums Authority, which stand of the appellant objector was disputed by the present respondent no. 1 landlord to the extent of flatly denying that any compromise or even proceedings before the Slums Authority took place. That being so, in my considered opinion, it cannot be denied that the real question in controversy in the adjudication of the objections was as to whether the appellant objector was a lawful subtenant in the subject property and as to whether the present respondents had colluded with each other and obtained eviction order by playing fraud upon the court. The proposed amendment, whereby the appellant objector sought permission to incorporate a paragraph in the Objection Application in order to elaborate the compromise proceedings, is certainly a necessary pleading in order to determine the real questions in controversy. In other words, the proposed amendment cannot be rejected as being not necessary for determination of real questions in controversy.
27. As regards delay in seeking amendment and answer to the observation of the learned trial court qua the explanation for the appellant objector not having filed a copy of the compromise with the Objection Application, it is clear stand of the appellant objector in the amendment application that earlier he was not in possession of the compromise and in the absence of any material to the contrary, this explanation of the appellant objector ought not to have been ignored. On the contrary, it needs to be examined as to whether by way of RCT No 130/2019 Tara Singh vs Padam Chand Vaish Page 21 of 23 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2022.01.27 12:56:54 +05'30' application dated 08.05.1986 (copy whereof has been placed on record by the appellant objector) the present respondent no.1 obtained certified copies of the said compromise dated 23.01.1973 and ordersheets of the Slums Authority but concealed the same from the trial court to obtain an eviction order.
28. The question as to whether the alleged consent in the year 1972 to sublet validated the subtenancy and possession of the appellant objector with effect from 1970 is a question touching the merits of the proposed amendment, which could not have been examined by the learned trial court while dealing with the amendment application of the appellant objector.
29. In his amendment application, the appellant objector sought permission to insert only one clause in the Objection Application, which clause only explained as to how the appellant objector claims himself to be a lawful tenant. The amendment sought by the appellant objector was only elaborative in nature and it is nobody's case that allowing the amendment would have changed the nature of the proceedings or cause of action. Therefore, there was no reason for the learned trial court to decline the amendment request of the appellant objector.
30. In view of above discussion, I am unable to uphold the impugned order, so the same is set aside and amendment application of the appellant objector is allowed with the direction to the appellant to file Amended Objection Application before the learned Additional Rent Controller within two weeks.
RCT No 130/2019 Tara Singh vs Padam Chand Vaish Page 22 of 23 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2022.01.27 12:56:31 +05'30'
31. Accordingly, the appeal stands allowed. Trial Court Record be sent back with a copy of this judgment and appeal file be consigned to records, leaving the parties bear their own costs.
Announced through videoconferencing on this
27th day of January, 2022 GIRISH Digitally signed by GIRISH
KATHPALIA
KATHPALIA Date: 2022.01.27 12:56:14 +05'30'
(GIRISH KATHPALIA)
PRINCIPAL DISTRICT & SESSIONS JUDGE (HQs)
RENT CONTROL TRIBUNAL, CENTRAL,
TIS HAZARI COURTS, DELHI
RCT No 130/2019 Tara Singh vs Padam Chand Vaish Page 23 of 23 pages