Allahabad High Court
Raj Kumar Mulani vs Ramesh Kumar Hemrajani on 19 September, 2019
Equivalent citations: AIRONLINE 2019 ALL 1503, 2019 (12) ADJ 38 NOC, (2019) 3 ALL RENTCAS 739, (2019) 6 ALL WC 5461, (2020) 138 ALL LR 24, (2020) 206 ALLINDCAS 879
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 5 Case :- MATTERS UNDER ARTICLE 227 No. - 6791 of 2019 Petitioner :- Raj Kumar Mulani Respondent :- Ramesh Kumar Hemrajani Counsel for Petitioner :- Jayant Kumar Counsel for Respondent :- Ayush Khanna Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri Jayant Kumar, learned counsel for the defendant-petitioner and Sri Atul Dayal, learned senior Advocate, assisted by Sri Ayush Khanna, learned counsel for the plaintiff-respondent.
2. This petition under Article 227 of the Constitution of India has been filed praying for the following relief:-
"i) to issue, order or direction to the court to set aside the order dated 09.05.2019 (Ann-5 to the petition) passed by Additional Judge Small Causes Court Ist in Small Causes Case No.311 of 2015 (Ramesh Kumar Hemrajani Vs. Raj Kumar Mulani) as well as order dated 11.07.2019 (Ann-7 to the petition) passed by District Judge Kanpur Nagar in Civil Revision No.52 of 2019 (Raj Kumar Mulani Vs. Ramesh Kumar Hemrajani)."
Facts
2. Briefly stated facts of the present case are that the plaintiff-respondent is the owner and landlord of the premises No.107/170-B, F. Road, Jawahar Nagar, Kanpur Nagar. In the said premises certain accommodation has been let out by the plaintiff-respondent to the defendant-petitioner at an agreed monthly rent of Rs.2650/- including taxes. The plaintiff-respondent did not want to continue the tenancy of the defendant-petitioner, therefore, he gave a legal notice to the defendant-petitioner dated 24.09.2015 by registered post determining the tenancy and requiring the tenant to vacate the tenanted accommodation. Since the tenanted portion was not vacated by the defendant-petitioner, therefore, the plaintiff-respondent filed S.C.C. Suit No.311 of 2015 (Ramesh Kumar Hemrajani Vs. Raj Kumar Mulani) on 21.12.2015. The defendant-petitioner filed a written statement dated 19.05.2016 in which he admitted the contents of paragraph nos. 1 & 2 of the plaint. He admitted agreed rate of rent to be Rs.2650/- inclusive of all taxes. In other paragraphs also he admitted this fact. Relevant paragraph nos. 1, 4 & 8 of the written statement dated 19.05.2016 are reproduced below:-
"(1) That the contents of para 1 & 2 of the suit as stated is admitted with correction that beside shop and bhandaria on ground floor the defendant is tenant of one 8 x10 sq. feet room situated at first floor of the said premises subject to payment of agreed rent of 2650/- including all of taxes however plaintiff has to proof his statements of para 1 and para 2 of plaint.
(4) That the contents of para 6, 7, 8 and 9 of the plaint as stated are not admitted to defendant being incorrect and false. Plaintiff grab a fictitious story to evict the defendant illegally from the tenancy area of she said premise by way of illegal and baseless notice dt. 24.9.15 which has no legal value and on the basis of that the said demand of damages of Rs.20,000/- per month as the prevailing rate of rent is void ab-initio since plaintiff accept the agreed rent of Rs.2650/- per month including taxes after giving the said notice the whole proceeding became infructuous and plaintiff has strict proof of his plaint para 6,7,8 and 9. Defendant is valid tenant of the said premises and is not liable to pay any damages of Rs.36,000/- or 20,000/- per month as demanded by plaintiff.
(8) That the Choith Ram Mulani son of Galumal was the tenant of one shop, one bhandaria on ground floor and one room on first floor of the said premises at the rate of 40/- Rs. per month in the year of 1966 and gradually the landlord increases the tax and rent as 50/- Rs., 60/- Rs. and lastly Rs.1500/- in 1996 and till 26.01.2003 at the death of Choith Ram and thereafter the plaintiff and his brother Ashok Kumar became the tenant of the said accommodation and landlord received the rent in cash by their tenants and now the plaintiff received the agreed rent of Rs.1950/- and 700/- as taxes total Rs.2650/- and the present premises fall within the provisions of U.P. Rent Act No.13 and the defendant is protected under the said Act hence the suit is infructuous and liable to be set aside."
3. After about 17 months the defendant-petitioner filed an Amendment Application dated 04.10.2017 seeking to amend paragraph nos. 1, 2 & 3 of the written statement. The prayer clause of the Amendment Application is reproduced below:-
"(a)That in para 1 of the written statement in line 6 word agreed rent of Rs.2650/- including all the taxes be deleted and in its place the rent is Rs.1950/- and Rs.700/- was paying by the defendant for advance amount, which are received by the plaintiff from the defendant and in such a manner the rent is only 1950/- be added and amended and in para 2 in line 5 after the word 1972 since the rent is 1950/- is being paid to the plaintiff be added and amended and in para 3 in line 4 after the date 24.09.2015 is illegal baseless and the suit is not maintainable by virtue of Section 20 of U.P. Act No.13 of 1972 and no rent was due on the date of issue of notice. In fact the answering defendant is the tenant since the year of 1966, initially the rent was Rs.40/- and the tenancy in the name of the father of the defendant Sri Chhothram, who has been expired in the year 2003 and after the tenancy devolved in the name of the answering defendant and slowly and slowly the rent was increased by the plaintiff and lastly the plaintiff receiving the rent Rs.120/- per month against the rent receipt to the defendant and the he has started to demand more than rent and increased Rs.1950/- at present be added and amended."
4. The aforesaid amendment application 39 Ga was rejected by order dated 09.05.2019, passed by the Court of Additional Judge Small Cause Court No.1, Kanpur Nagar. Aggrieved with it, the defendant-petitioner filed a Civil Revision No.52 of 2019, which was dismissed by the impugned order dated 11.07.2019, passed by the Officiating District Judge/Additional District Judge, Court No.1, Kanpur Nagar. Aggrieved with the aforesaid two orders the defendant-tenant/petitioner has filed the present petition under Article 227 of the Constitution of India.
5. Submissions
5. Learned counsel for the petitioner submits that the admissions made in the written statement can be withdrawn by amendment under Order VI Rule 17 C.P.C. in view of the law laid down by Hon'ble Supreme Court in Sushil Kumar Jain Vs. Manoj Kumar, 2009 (14) SCC 38. He further submits that the amendment was merely to explain the averments made in paragraph nos. 1, 2 & 3 and, therefore, both the courts below have committed manifest error of law not to allow the Amendment Application.
6. Sri Atul Dayal, learned counsel for the plaintiff-respondent submits that the judgment relied by learned counsel for the defendant-tenant/petitioner has been over ruled by Bench of three judges of Hon'ble Supreme Court in Ram Niranjan Kajaria Vs. Sheo Prakash Kajaria and others (2015) 10 SCC 203 (paragraphs 16,17,19, 20, 22 & 23). He further submits that the Amendment Application moved by the defendant-petitioner was malafide and the malafidie is apparent on record. By means of Amendment Application he actually wanted to delay the conclusion of the case and he was successful in doing so by exhausting about three years merely in contesting the Amendment Application. He further submits that the admission made by the defendant-tenant/petitioner in the written statement can not be permitted to be withdrawn by an Amendment Application. He further submits that allowing the Amendment Application would amount to oust the jurisdiction of the Judge Small Cause Court inasmuch as the jurisdiction of rent cases in matters of rent below 2000/- would be of the Prescribed Authority under the Provisions of U.P. Act 13 of 1972.
Discussion and Findings
7. I have carefully considered the submissions of learned counsels for the parties.
8. In paragraph 1 of the plaint the plaintiff-respondent has clearly mentioned that the rent is Rs.2650/- per month including taxes. This averment was clearly admitted by the defendant-petitioner in paragraph no.1 of the written statement and it was stated that the agreed rate of rent including all taxes is Rs.2650/-. Again in paragraph nos. 4 & 8 of the written statement the defendant-petitioner admitted that the agreed rent is Rs.2650/- per month including taxes. Thus, a clear admission of fact with regard to rate of rent to be Rs.2650/- per month including all taxes, have been made by the defendant-tenant/petitioner in paragraph nos. 1, 4 & 8 of the written statement which has been reproduced above. By the Amendment Application the petitioner has sought amendment only in paragraph nos. 1, 2 & 3. No Amendment has been sought in paragraph nos. 4 & 8 of the written statement. The defendant-tenant/petitioner is admitting that monthly rate of rent is Rs.2650/- inclusive all taxes. Thus, it appears that Amendment Application moved by the defendant-tenant/petitioner after about 17 months of the filing of the written statement was not bonafide.
9. The judgment of two Judge Bench of Hon'ble Supreme Court in Sushil Kumar Jain (supra) is based on another judgment of Hon'ble Supreme Court in Panchdeo Narain Srivastava Vs. Jyoti Sahay, 1984 Supp SCC 594 in which an observation has been made that an admission made by parties may be withdrawn. The relevant paragraph of the judgment of the Hon'ble Supreme Court in the case of Sushil Kumar Jain (supra) relied by learned counsel for the defendant-tenant/petitioner, is reproduced below:-
"9. That apart, a careful reading of the application for amendment of the written statement, we are of the view that the appellant seeks to only elaborate and clarify the earlier inadvertence and confusion made in his written statement. Even assuming that there was admission made by the appellant in his original written statement, then also, such admission can be explained by amendment of his written statement even by taking inconsistent pleas or substituting or altering his defence.
10. At this stage, we may remind ourselves that law is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering, substituting a new cause of action (See Baldev Singh & Ors. vs. Manohar Singh & Anr. AIR 2006 SC 2832).
12. Keeping these principles in mind, let us now take up the question raised before us by the learned counsel for the parties. As stated herein earlier, the admission made by a defendant in his written statement can be explained by filing the application for amendment of the same. This principle has been settled by this Court in Panchdeo Narain Srivastava Vs. K. Jyoti Sahay AIR 1983 SC 462, while considering this issue, held that the admission made by a party may be withdrawn or may be explained. It was observed in paragraph 3 of the said decision as follows:-
"An admission made by a party may be withdrawn or may be explained away. Therefore, it cannot be said that by amendment, an admission of fact cannot be withdrawn.........."
10. The judgments of the Hon'ble Supreme Court in Panchdeo Narain Srivastava (supra) and Sushil Kumar Jain (supra) have been considered by a three Judges Bench of Hon'ble Supreme Court in paragraph nos.16 &17 of the judgment in Ram Niranjan Kajaria (supra) and both the aforesaid judgments have been over ruled and it has been held "that a categorical admission made in the pleadings cannot be permitted to be withdrawn by way of an amendment". Paragraph nos. 19, 20, 22, & 23 of the judgment in Ram Niranjan Kajaria (supra) are reproduced below:-
"19. In Gautam Sarup v. Leela Jetly and others (2008) 7 SCC 85,after considering Panchdeo Narain Srivastava (supra) and Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram & Co. (supra) and several other decisions dealing with the amendment on withdrawal of admissions in the pleadings, it was held at Paragraph-28 as follows:
"28. What, therefore, emerges from the discussions made hereinbefore is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other."
20. On amendments generally, in the decision reported in Revajeetu Builders and Developers v. Narayanaswamy and Sons and others(2009) 10 SCC 84 ,after referring to Gautam Sarup (supra), the principles on amendment have been summarized at Paragraph-63. It has been held as follows: ( Revajeetu Builders case (2009) 10 SCC 84, SCC p. 102) "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 bona fide or mala fide;
(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 in fact 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 amendments if a fresh suit on the amended claims 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 application filed under Order 6 Rule 17. These are only illustrative and not exhaustive."
22. Delay in itself may not be crucial on an application for amendment in a written statement, be it for introduction of a new fact or for explanation or clarification of an admission or for taking an alternate position. It is seen that the issues have been framed in the case before us, only in 2009. The nature and character of the amendment and the other circumstances as in the instant case which we have referred to above, are relevant while considering the delay and its consequence on the application for amendment. But a party cannot be permitted to wholly withdraw the admission in the pleadings, as held by this Court in Nagindas Ramdas v. Dalpatram Ichharam alias Brijram and others (1974) 1 SCC 242 .To quote Paragraph-27: (SCC pp. 251-52) "27. From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong."
23. We agree with the position in Nagindas Ramdas (supra) and as endorsed in Gautam Sarup (supra) that a categorical admission made in the pleadings cannot be permitted to be withdrawn by way of an amendment. To that extent, the proposition of law that even an admission can be withdrawn, as held in Panchdeo Narain Srivastava 1984 Supp SCC 594 (supra), does not reflect the correct legal position and it is overruled."
(Emphasis supplied by me)
11. From the legal position as extracted above it is clear that the submission of the petitioner based on the over ruled judgment of Hon'ble Supreme Court in the case of Sushil Kumar Jain (supra), deserves to be rejected.
12. In view of the above discussion, I hold that a categorical admission made in the pleadings can not be permitted to be withdrawn by way of an amendment. The Amendment Application filed by the defendant-petitioner was not bonafide. The Judge Small Cause Court has lawfully rejected the Amendment Application by impugned order dated 09.05.2019 and the Revision filed by the petitioner was lawfully dismissed by order dated 11.07.2019, passed by the Officiating District Judge/Additional District Judge, Court No.01, Kanpur Nagar.
13. For all the reasons aforestated, I do not find any merit in this petition. Consequently, the petition is dismissed with cost of Rs.5000/-.
Order Date :- 19.9.2019/vkg