Delhi High Court
Shanti Devi vs Sr. Ganga Pershad on 12 August, 1999
Equivalent citations: 2000IAD(DELHI)258, 82(1999)DLT707, 2000 A I H C 249, (1999) 82 DLT 707
ORDER K. Sharma, J.
1. By this judgment and order I propose to dispose of the revision peti tion filed by the petitioner plaintiff against the order dated 20.3.1997 passed by the Civil Judge, Delhi allowing the application filed by the defendant under Order 6 Rule 17 of the Code of Civil Procedure seeking amendments in the written statement. The subject matter of the suit property is Shop No. 5414 opening on the Arya Samaj Road, Karol Bagh, New Delhi. The said shop, it is stated, belongs to Smt. Bhoori Devi, Dropdi and Ram Dulari. They preferred an eviction petition under the Delhi Rent Control Act against the respondent herein in the Court of the Rent Controller, Delhi which was registered as Case No. 624/69 and was decreed against the respondent under judgment and order dated 24.1.70 passed by the Additional Rent Controller, Delhi. It is stated in the present revision petition that subsequent to the aforesaid judgment and decree the three landladies filed an Execution Petition pursuant to which they also received possession. It is, however, stated that subsequently the respondent again trespassed into the said shop No. 5414, Arya Samaj Road, Karol Bagh, New Delhi. Accordingly Bhoori Devi, Dropdi and Ram Dulari filed a suit for possession and permanent injunction which is registered as Suit No. 318/81. In the said suit an injunction order was also passed restraining the defendant respondent from demolishing or carrying out any structural change in the shop in question bearing No. 5414.
2. During the pendency of the aforesaid suit the said three landladies sold the property to the present petitioner vide Sale Deed dated 23.1.82. After purchase of the aforesaid property by the present petitioner an application for substitution was preferred under Order 22 Rule 10 of the Code of Civil Procedure which was contested by the defendant respondent. The said application was allowed by the trial court by order dated 5.12.83 and consequently the name of the present petitioner was substituted as plaintiff.
3. In the said suit on the basis of the pleadings of the parties three issues were framed. After framing of the issues, the petitioner plaintiff produced evidence and examined five witnesses in support of her case and the evidence of the plaintiff was closed on 12.10.98 and thereafter the case was fixed for evidence of the defendant. The defendant also examined himself as his witness and he also concluded his evidence and thereafter the case was fixed for final arguments.
4. It appears from the records that thereafter the defendant was taking adjournments in the suit and in the month of July, 1995 the respondent filed the application under Order 6 Rule 17 of the Code of Civil Procedure seeking for amendment of the written statement contending, inter alia, that he had now come to know that the suit property earlier belonged to the Delhi Improvement Trust and the earlier plaintiffs namely, Smt. Bhoori Devi, Smt. Dropdi Devi and Smt. Ram Dulari were lessee in respect of the said land and were paying the necessary lease money to the Delhi improvement Trust. It is also stated in the said application that the respondentdefendant is now informed by the Delhi Development Authority under its letter dated 10.9.1996 that the said Lease Deed was cancelled and that the land presently vested in the Central Government. The aforesaid application filed by the respondent was contested by the plaintiff. The Civil Judge after hearing the parties allowed the application for amendment as against which the present revision petition has been preferred.
5. Counsel for the petitioner submitted that there are admissions of the defendantrespondent on record that he is the tenant in premises No. 5414 under Smt. Bhoori Devi, Dropdi Devi and Ram Dulari and, therefore, the said admission cannot be withdrawn by the respondent through an application under Order 6 Rule 17 of the Code of Civil Procedure. He also submitted that in view of the order allowing amendment in the written statement there will be change of the subject matter of the suit which is prejudicial and would adversely effect the valuable rights of the petitioner which has already accrued to him by lapse of time under the law of limitation. He also submitted that the proposed amendment is neither necessary for the purpose of determining the real question in controversy between the parties and that the same is inconsistent and belated and, therefore, should not have been allowed. In support of his contention the learned counsel for the petitioner has relied upon the decisions in M/s. Modi Spinning & Weaving Mills Co. Ltd. & Another Vs. M/s. Ladha Ram & Co.; ; Haji Mohammed Ishaq Wd. S.K. Mohammed and others Vs. Mohamed Iqbal and Mohamed Ali & Co. ; Shri Yamnam bobi Singh and others Vs. Shri Yamnam Yaima Singh and others and Thakur Dass Vs. Parbati Devi .
6. The learned counsel appearing for the respondent, however, submitted that the amendments sought for by the respondent in the written statement is necessary in order to effectively decide all the issues and controversies raised between the parties. He also submitted that the Additional District Judge rightly held that amendment as sought for by the defendant respondent herein is necessary to decide the real controversy between the parties which could be allowed at any stage and which power should be exercised liberally. In support of his contention the learned counsel relied upon in Assai Bai & Anr. Vs. Mohan Lal ; Raj Devi Vs. Mohd. Salim Siddique and Others ; Shikhar chand Jain Vs. Digamber Jain Prab and Karini Sabha and others and Ram Kishan Sharma & Ors. Vs. Bhagwan Sharma .
7. In the light of the aforesaid submissions of the learned counsel appearing for the parties, let me examine the legality of the order passed by the Civil Judge allowing the application seeking for amendment of the written statement. A perusal of the said order would indicate that he allowed the application on the ground that the information received by the respondent defendant from the Delhi Development Authority would be useful for determining the real controversy between the parties. It further appears that he was persuaded to allow the application considering the fact that law of amendment has been considerably liberalised.
8. My attention was drawn to the aforesaid letter dated 10.9.1996 stated to have been received by the defendant from the Delhi Development Authority on the basis of which the aforesaid amendment was sought for by the respondent defendant. The said letter is dated 10.9.96 and was issued to the respondent pursuant to his letter dated 1.8.96. It is stated in the said letter that the mutation of the land measuring 150 Sq. Yds. in the name of Bhoori Devi, Dropdi Devi and Ram Dulari was cancelled and that the title of the land vests with the Delhi Development Authority. It is stated by the counsel for the respondent that the respondent has come to know about the aforesaid fact only now on receipt of the aforesaid application and that the said fact is material and relevant for proving the case of the defend ant. However, it transpires from record that the respondent has also placed on record a certified copy of the Revenue Records to indicate that the names of the three landladies were cancelled. I have perused the said document carefully and it appears from there that the said document is a certified copy issued by an official of the DDA on 20.7.94. The application for amendment was filed on 17.7.95. It is revealed from the order of the Civil Judge that it was contended before him by the respondentdefendant that knowledge about the aforesaid cancellation was derived by the respondent defendant on receipt of the letter dated 10.9.96. If the aforesaid stand is correct then it is not understood as to how the respondent came to file the amendment application seeking for amendment by way of incorporation of the same facts as stated in the letter dated 10.9.96 a year prior to receipt of the same. The certified copy is dated 26.7.94. Even if it is assumed that the respondent has knowledge about the said fact as far as back on 26.7.94 it is also not explained why the same was not brought to the notice of the court at that point of time and why no application was filed seeking for amendment of the written statement at that stage. No explanation is at all forthcoming from the respondent on the aforesaid aspects. The respondent defendant also has not placed on record a copy of the letter dated 1.8.1996 in reply to which the letter dated 10.9.1996 was issued.
9. The plaintiff petitioner has proved various documents on record and the statement given by the respondent in the case before the Assistant Rent Controller. The said documents indicate that the respondent admitted himself to be a tenant under Bhoori Devi, Dropdi Devi and Ram Dulari. The present petitioner has purchased the property in question namely, the premises from the aforesaid three landladies. In the written statement filed by the respondent herein he has sought to deny the title of the aforesaid three landladies when he stated in his written statement that the plaintiff or her predecessor in interest have no right, title or interest in Shop No. 5414. Having admitted the right, title and interest of the predecessor in interest of the present petitioner in the case before the Rent Controller and also having admitting that the three ladies were his landladies, the defendant cannot turn back and try to take away the admissions made by him which would prejudicially effect the interest and claim of the petitioner. Besides the decree is sought for in the present suit in respect of the shop No. 5414. Therefore, the cancellation of the lease in respect of the land cannot be strictly said to be an issue in controversy in the present suit. The effect of the impugned order would be that an entirely different and new defense would be raised which would also call for adducing additional evidence. Such amendment would definitely case prejudice and injustice to the petitioner and that it cannot be said that the same is necessary for the purposes of determining the real question of controversy between the parties. Having admitted in the proceedings before the Rent Controller that he is a tenant in respect of the premises No. 5414, the respondent cannot deny the ownership so as to avoid the order of eviction. In coming to the aforesaid conclusion I am fortified by the decision of this court in Thakur Dass (supra). In the said case it was held that the respondent in fact has a good title against every body in the world including the petitioner but excepting the Delhi Development Authority and a tenant cannot take up a defense denying ownership so as to avoid an order of eviction. In my considered opinion similar is the view in the present case. In my considered opinion as the amendment of the written statement would amount to taking away admissions of the defendant and would also introduce a new case calling for adducing additional evidence thereby prejudicially effecting the valuable right and interest of the petitioner, the Civil Judge acted illegally and without jurisdiction in allowing the application for amendment of the written statement. The petition therefore, stands allowed. The order of the Civil Judge allowing the application seeking for amendment sought is set aside. There shall, however, be no order as to costs.