Delhi High Court
Vinod Industries (P) Ltd. vs Suraj Kumari on 19 May, 1993
JUDGMENT Usha Mehra, J.
(1) The short point in this revision petition is whether the tenant who had filed the leave to defend application within the time stipulated supported by a short affidavit can he allowed to file an affidavit by way of leave to defend and can be allowed to amend the leave to defend application already filed ?
(2) Vinod Industries (P) Ltd. was a tenant of Smt. Suraj Kumari, respondent herein of the first and second floor of premises bearing No. 82, Jor Bagh. Respondent filed an eviction petition against the petitioner on 13.1 91 for eviction u/S. 14D of the Delhi Rent Control Act (the Act).
(3) Notice in the prescribed form was issued to the respondent, The petitioner filed a leave to defend application with a short affidavit instead of filing leave to defend affidavit as required u/S. 25-B(4) of the Act. Therefore, on objection being raised by the respondent, petitioner moved an application u/S. 151 of the Civil Procedure Code seeking permission of the court to file detailed affidavit and to grant unconditional leave to defend the proceedings. This application was subsequently withdrawn by an application u/0. 23 R. 1 (3) read with S. 151 Civil Procedure Code on 22.1.92 with liberty to move two separate applications; one seeking the prayer to file a detailed affidavit and the other seeking to amend the affidavit already filed in order to bring on record subsequent events and clarifications. Thereafter, the petitioner moved two applications; one u/S. 151 Civil Procedure Code . and the other u/0. 6 R. 17 Civil Procedure Code . Both the applications were filed in Jan. 1992. By the impugned order the court below dismissed all the four applications filed by the petitioner with costs. It is against this order that the present revision has been filed. At the outset the respondent took the objection that the revision is not maintainable. If an application u/0. 6 R. 17 is disallowed the remedy is by way of appeal. [In para 4, S. 38(i) is reproduced].
(4) The question for consideration is whether the order disallowing the amendment is an order covered u/S. 38(1) of the Act. S. 37 of the Act deals with the procedure to be followed by the Controller. S, 37(2) applies practice and procedure of the court of Small Causes to the proceedings before the rent controller. Amendment of a pleading or filling of the additional pleading is a part of such procedure. It is, therefore, contended by Mr. Narula, counsel for the respondent that an order disallowing the amendment of a pleading or the filing of a new or additional affidavit by way of pleading would be an order u/S. 37(2) of the Act, and, therefore, such an order would be an order under the Act. The Supreme Court in Central Bank vs. Gokal Chand 1967 D.L.T. 1 pointed out that the words every order of the Controller made under the Act have to be construed restrictively so as to exclude merely procedural orders or such interlocutory orders as do not affect any right or liability of a party that order from the ambit of these words. The intention of the legislature is not to allow the appeal against each and every order because the bare reading of S. 38(1) makes if clear that the appeal would lie only on question of law. Therefore even when by an interlocutory order a decision is given which pertains to the question of law or which affects substantially the right of a party that order would be covered by the ambit of S. 38(1) of the Act. Therefore as a rule an order allowing or rejecting an amendment of pleadings should be recorded as an interlocutory order affecting the right and liability of the party, and therefore, covered under the ambit of section 38(1) of the Act and this has been so held in M.L. Midha vs. Hardayal, Sao 97/68 D./21.1.1967. Therefore according to Mr. Narula, the remedy for the petitioner was to file an appeal. The revision is not maintainable. The learned counsel for the petitioner Ms. Pinky Anand, on the other hand contended that the impugned order happens to be a composite order rejecting all applications by one order, therefore, it can be inferred that the Controller did not exercise the jurisdiction properly and since he did not exercise the jurisdiction, therefore, the revision. If he had rejected the application u/0. 6 R. 17 on its merits then of course the appeal would have been preferred. But by a composite order he has rejected all the four applications. Those applications and order passed on those applications are interlocutory in nature, without affecting the right and liability of the party, therefore revision is maintainable. The arguments on both sides are quite weighty. It is well settled and recognized principle of law and rule of general nature that an interlocutory order which affects the right or liability of a party is an appealable order. As a rule, an order allowing or rejecting the amendment of pleadings is an appealable order, but the case in hand is an exception to the general rule. The circumstances of the present case are such as to constitute an exception to the general rule. The petitioner filed the leave to defend application within time instead of affidavit as required u/S.25B(4) of the Act. The petitioner by application u/S. 151. Civil Procedure Code . wanted to file the detailed affidavit. This application has also been rejected by the impugned order, to my mind, it was a technical defect and court ought to have exercised its jurisdiction in allowing the same. Against the rejection of such an application revision is maintainable because court below failed to exercise its jurisdiction. Similarly, the peti tioner's application to withdraw the application u/S 151, Civil Procedure Code has also been rejected without assigning any reason, and therefore, revision would lie. Finally, the application for bringing additional and subsequent facts on record by way of amendment, to my mind, has been disallowed without any reason. Admittedly the affidavit of leave to defend cannot be amended u/0. 6 R 17, Civil Procedure Code . Only additional affidavit can be filed bringing facts on record. The non mentioning of the correct provisions is only a technical defect and application could not have been. rejected on this account. Therefore, against such an order, to my mind, the revision is the proper remedy and not the appeal. Hence this objection merits rejection.
(5) Now coming to the merits of the case so far as the first application u/s 151, Civil Procedure Code . is concerned, that stood withdrawn by the petitioner vide his application u/0 23, R 3, C.P.C. with a condition that he would file two separate applications. Now we are concerned with the two applications which were filed by the petitioner subsequently. One is u/S. 151; the other under 0 6, R 17 read with S. 151, C P.C. So far as the first application u/s. 151 is concerned, the petitioner wants to file an additional affidavit taking all those grounds which he had taken in his leave to defend application filed on 25.2.91 Admittedly u/s 25-B(4) of the Act, the petitioner ought to have filed an affidavit instead of application but for this technical defect, the leave to defend application cannot be rejected nor can the petitioner be non-suited. He had filed the affidavit but it is a short affidavit, whereas he ought to have filed a detailed affidavit taking the grounds which he in fact has taken in his leave to defend application. To my mind, the court should not have taken into consideration these technicalities but ought to have permitted the petitioner to file the affidavit, of course talking only those pleas which he had taken in his leave to defend application. It is made clear that petitioner will not be allowed to add any fresh grounds in this affidavit. Mr. Narula's contention that since the affidavit was defective in the initial stages the same cannot be rectified. For this he placed reliance on R. Murlidhar Ready Co. vs. N.P.C.C. Ltd. 1992 R.L.R. 288. This decision, to my mind, is not applicable to the facts of this case. The court in that cage was concerned with the affidavit filed by the corporation who challenged the award on the ground that the arbitrator was holding meetings with the party. The court observed that the said affidavit did not disclose the source of information or the basis of knowledge with regard to the averment made in the application, and therefore, found that the objection regarding the misconduct of the proceeding by the arbitrator as not valid. But that is not the case in hand. It is nobody's case that the affidavit suffers from any defect regarding attestation or verification. Only ground of attack is short affidavit filed in support of the application. Mr. Narula thereafter relied on Vidya Sagar vs. Shakuntala Devi 1992. Raj L.R. 5 where it was held that filing of an affidavit containing grounds of defense is a mandatory provision. Filing an application with an unattested affidavit is not enough. The application itself should be in the form of an affidavit. In that case along with the application an unattested affidavit was filed and the court after considering various judgments came to the conclusion that since there was no affidavit filed containing the facts on the basis of which leave to defend was sought, therefore, the application was rejected. It was held "unattested affidavit cannot be treated as an affidavit as required to be filed u/s. 25-B(4)". But that is not the case in hand. In the present case the affidavit has been filed duly attested supporting the contents of the application for leave to defend The only drawback is that the application ought to have been in the form of affidavit per S. 25-B(4). As pointed out earlier, it is a mere irregularity and can be rectified by asking the petitioner to file an affidavit incorporating all those pleas which have been taken in the application. In this regard I am supported by J.B. Kansal vs. Waryam Singh 1981 (1). RCJ. 200; D.N. Gupta vs. Jaswant Singh 1982 Rajdhani Law Reporter, 185. Observing the rule of natural justice, the application of the petitioner u/s. 151, Civil Procedure Code . deserve to be allowed, the application of leave to defend be permitted to be supported by additional affidavit, however without permitting the petitioner to incorporate any new or fresh grounds and further subject to such objections as the respondent may take regarding the question of limitation. With these observations the application u/S 151, Civil Procedure Code . stands disposed of.
(6) So far as the application under 0. 6 R. 17, Civil Procedure Code . is concerned, it is a well settled principle of law that the tenant can be permitted to file an additional affidavit bringing on record subsequent events but inconsistant pleas cannot be allowed to be brought on record. By this amendment and by filing of additional affidavit the petitioner wants to change the description of the tenant. In the leave to defend application it is admitted by the petitioner that M/s. Vinod Industries (P) Ltd. is the tenant. Now by the proposed amendment, the petitioner wants to bring on record in the garb of lifting of the veil Smt. Urvashi and her sons as tenants. Because according to petitioner M/s Vinod Industries (P) Ltd. is a family concern and when the veil will be lifted it would become clear that in fact it is Smt. Urvashi and her sons who are the real tenants. To my mind, this amendment is not permissible for two reasons; firstly this is not a subsequent event nor it can be called clarification. Rather it amounts to withdrawal of the admission already made which is not permissible under law. It would rather amount to inconsistent pleas which cannot be allowed. The perusal of this application shows that all those pleas which now the petitioner wants to set up are not subsequent events nor can be called clarificatory in nature. Therefore the trial court rightly rejected the application under 0 6. R. 17 and 1 find no infirmity in the order of the court below in this regard. Amendment cannot be allowed. It is hereby made clear that the Rent Controller will allow the petitioner to file affidavit incorporating only those pleas which he took in the leave to defend application subject to the right of the respondent to raise any objections.