Delhi High Court
Jagdish Kumar vs Pushpa Kalia And Anr. on 10 January, 1994
Equivalent citations: 53(1994)DLT315
JUDGMENT Arun Madan, J.
(1) Heard learned Counsel for the parties. The order sought to be challenged by way of this petition is regarding refusal of the Additional Rent Controller to allow proposed amendments made in the application under Order 6 Rule 17 of the Code of Civil Procedure, which was passed on 24th August, 1992.
(2) The case of the petitioner/tenant is that he filed an application before the Addl. Rent Controller by raising the additional grounds, which reads as follow:- " (i) that the ground floor of the house in question comprising two rooms and a store, varandah, kitchen, bath and Wbc and had been lying vacant since 1989 but the respondent No. 1 took no steps to occupy the said ground floor; (ii) that the petitioner was living with her family at D-869, Netaji Nagar and the accommodation comprised of 2 living rooms and the petitioner and the respondent did not require the premises in question; (iii) that the third ground sought to be added was about the husband of the respondent No. I, having retired on 30th September, 1986 and no petition for eviction was filed until the expiry of 4 years from the date of retirement of the respondent No. 1's husband. The daughter of the respondent was stated to be of a marriageable age but even after her marriage she and her husband did not occupy the ground floor which had been lying vacant."
(3) The case of the respondent/landlady on the other hand is that if the amendments sought are permitted then this would amount to setting up a new case contrary to the withdrawal of the admissions already made. Learned Counsel for the respondent has invited my attend on to the reply filed to the application for leave to contest the eviction petition. In paragraph 3 of the said application it has specifically been averred that the husband of the landlady-respondent No. 1 retired on 30.9.1986 and the eviction petition was filed on 28.5.1990. The petitioner agreed to let out the tenancy premises to the respondent/tenant for a fixed period of eleven months w.e.f. 1.2.1986 and it was made clear that her husband was to retire on 30.9.1986 and thereafter the premises were required for her bonafide residence, to which the respondent agreed at the time of letting out the premises. It is further the case of the respondent/landlady is that after the retirement other husband he was to vacate the Government allotted flat at Netajee Nagar, so the respondent was repeatedly approached to vacate the tenancy premises and he went on giving false promises on one pretext or the other. Since the Estate Department forced the husband of the landlady to vacate the Government flat or to pay market rate of rent, which was beyond the capacity of the husband of the landlady, as he is getting very petty amount of pension, so the said Government flat was vacated and shifted his goods to the ground floor of the suit premises but the tenant and his wife started creating nuisance and it was injurious to the husband of the landlady who is a cronic heart patient. In view of the compelling circumstances after keeping most of the goods there the respondent with her family shifted and shared the Government allotted accommodation to the landlady's brother at Laxmi Bai Nagar, New Delhi.
(4) Learned Counsel for the petitioner has controverter the stand taken by the respondent/landlady by saying that there was a gap of four years between the date of retirement of the husband of the respondent i.e. 30.9.1986 and the date of filing of the eviction petition which was moved on 28.5.1990. The application for leave to defend was filed by the tenant/petitioner on 25-6-1990 on this basis it was sought to argue by the learned Counsel for the petitioner before the Addl. Rent Controller, the tenanted premises were lying vacant and, therefore, the landlady was not in need of the residential accommodation. The reliance has been placed on the judgment of this Court in the matter of Neera Grover etc. v. Narinder Jaggi, 1982 Rlr 18, wherein in paragraph 8, it is held as follows:- "It is well settled law that by amendment neither a new case can be permitted to be set up nor can an admission be retracted. In the present case, when the application for leave was filed, the tenant was well aware of the averments contained in the eviction petition. In the eviction petition, it was specifically mentioned that the permises were let for residential purpose. In the application for leave to appear and contest, neither there was any denial of this fact nor any plea was taken that the letting purpose was otherwise. It is thus clear that there was implied admission by the tenant when he failed to deny the fact that the premises were let for residential purpose. No amendment which has the effect of withdrawing express or implied admission of a fact can be allowed in the circumstances of the present case."
(5) Reliance has also been placed on another judgment of this Court in the matter of Chetan Lal Jain v. Manohar Lal Vohra, Air cj (Vol. 2) 1983 Page 704 wherein the learned Single Judge of this Court took a view that the amendment of the application for leave to defend by incorporating subsequently events and other legal grounds, amendments should be allowed. The general principle is that parties should not be allowed to set up a new case, by way of amendments or on a new cause of action, particularly when a new case or cause of action would prejudice the defense already taken by the other party. In the reply filed by the landlady to the application under Order 6 Rule 17 read with Section 151 Cpc, she has made clear averments to this effect, which reads as follows:- "On perusal of the original application for leave to defend, the accommodation with the petitioner at the ground floor of the suit premises is not denied, though the same is ample clear in the site plan filed by the petitioner, and even the other proposed grounds are satisfied and are contrary to the documents filed on record by the petitioner. No proof of the averments of the resident have been placed on record. The alleged proposed grounds as per the averments of the respondent himself are not subsequent events and as such cannot be allowed to be added by way of amendment, and if allowed, it shall be misused of the process of the Court, since no new grounds can be allowed by way of amendment. The present application under Order Vi Rule 17 Civil Procedure Code . does not lie in the present proceedings, since the present application for leave to defend sought to be amended is not a part of the pleadings and as such the impugned application for amendment is liable to be dismissed."
(6) Learned Counsel for the petitioner has referred to the judgment of the Supreme Court in the matter of J.J. Ram Manohar Lal v. National Building Material Supply, Gurgaon, wherein the Apex Court has held that the application could not be refused on the ground that there was no averment therein that the misdescription was on account of a bona fide mistake, and on that account the suit must fail. I am afraid this judgment is of no assistance to the petitioner since it is admittedly not the case of the parties that there was any bona fide mistake in drawing up the pleadings and, therefore, on this account the amendment should not be permitted and it will further hamper the cause of administration of justice and further delay the proceedings since the petition is solely on the ground of bona fide requirement of the landlady which is pending for a long time.
(7) In my view the learned Additional Rent Controller has passed a very reasoned order in declining the prayer of the petitioner to allow him the proposed amendments. As would be seen that the only ground of defense raised by the petitioner earlier was that the eviction petition was not filed after four years of the retirement of the husband of the respondent/landlady which goes to show that the ground is not bona fide The petitioner, however, chooses to remain silent and did not raise any objections. My attention has also been drawn to the pleadings. I do not see any suppression on the part of the respondent/landlady regarding accommodation available to her at the time of letting the premises to the petitioner. It is settled law that the landlord /owner is the best judge of his bona fide need and the same has to be considered objectively. That being so, the proposed amendments should not be permitted at this stage. Since the petitioner did not dispute any other ingredients and averments of the respondent and, therefore, he must be deemed to have admitted the same. The said amendments if incorporated at this belated stage would amount to setting up a new case and withdrawing of the admission already made by the petitioner, which if permitted would seriously prejudice the case of the respondent/landlady. I am fortified in my view from the judgments referred to above and consequently this petition is dismissed. There will be no order as to costs. Parties are directed to appear before the Additional Rent Controller on the date already fixed which I am informed is 25th January, 1994. The above observations will not amount to any expression of opinion on the merits of the case.