B K Aggarwal And Anr vs Avinash Grover And Ors on 8 December, 2014

[Cites 13, Cited by 2]

Punjab-Haryana High Court

B K Aggarwal And Anr vs Avinash Grover And Ors on 8 December, 2014

Challenge in the present revision petition, filed by the petitioner- tenant, under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (for short, the 'Act') is to the order dated 07.02.2011, whereby the application, filed under Order 6 Rule 17 CPC for amendment of rent petition, has been allowed by the Rent Controller, Chandigarh. The reasoning given by the Rent Controller is that though the affidavit had been tendered in evidence but the cross of the witness was yet to be conducted by counsel for the tenant and since the eviction was for personal necessity and for adjudging the necessity to be a bona fide and genuine, maximum facts should have been brought on the file. The amendment was explanatory in nature and in addition of the facts and no injustice would be done to the respondent in any manner and no serious prejudice would be caused to him. The costs of `2500/- were, accordingly, imposed, 50% of which were to be paid to the petitioner-tenant to compensate him.

A perusal of the paperbook would go on to show that the rent petition, filed on 12.06.2007 (Annexure P1) under Section 13 of the Act, for the ejectment of the petitioner-tenant from the ground floor portion (left hand side) SAILESH RANJAN 2014.12.22 18:18 I attest to the accuracy and integrity of this document CR No.3484 of 2011 (O&M) -2- which consisted of one hall and 1000 sq.ft. with open space on back portion of the side hall which is part of SCO No.26, Sector 26, Chandigarh. The rented portion had been shown with red colour in the site plan. It had been alleged in the eviction petition that vide the registered lease deed dated 22.01.1998, the premises had been leased out for a period of 5 years, at an initial monthly rent of `30,250/- with enhancement clause of 10% every year from 01.02.1999. The lease was to expire on 31.01.2003 and as per the terms, a new lease was to be executed and if not, there was an increase clause and as per the increase clause, amounts were claimed in the rent petition to set up the ground for arrears of rent. The requirement for personal use and occupation was set up on the ground that the petitioners, who were doing business jointly under the name and style of M/s K.L.Grover and Company, required the premises since they have been running the business under the name and style of M/s Punjab Iron Store, since 1971 from the premises of SCO No.10-A, Sector 7-C, Madhya Marg, Chandigarh under the control and care of applicants No.1 & 2, in the rent petition. It was pleaded that there was an alternative point of sales godowns for G.I. & M.S. pipes in plot No.51, Industrial Area Phase-II, Chandigarh since the year 1995 and the business was also being run from the said premises. However, on account of restrictions imposed by the U.T. Administration and on account of notice dated 02.03.2007, issued under Rule 20 of the Chandigarh Leasehold of Sites and Buildings Rules, 1973, carrying on trade in G.I & M.S. pipes was not legal. It was submitted that they had slowed and closed down the business in the Industrial area and the petitioners wanted to shift the entire business to other suitable and permissible place. The ground floor of the rented premises could be used for the said trade and therefore, there was a requirement of the said premises for personal necessity. It was further alleged that the family of the applicants No.1 & 2 were sons of Late SAILESH RANJAN Shri K.L.Grover and required the said premises for their own personal use and 2014.12.22 18:18 I attest to the accuracy and integrity of this document CR No.3484 of 2011 (O&M) -3- occupation. The said applicants owned SCO Nos.2465-2466, Sector 22-C, Chandigarh, which were under tenancy with three different tenants but the area of the premises did not suit the petitioners for smooth running of the business, being too small and the rented premises were the only such place and that there were three different tenants in the said premises and one tenant, M/s Shah & Company had already vacated his tenanted premises and the other tenant, M/s Surya Laminates had assured to hand over vacant possession. Accordingly, a request had been made to the petitioner-tenants also who are having their own commercial property at Plot No.426, Industrial Area-II, Chandigarh, but they were creating problems in the smooth running of the business of the applicants and withholding the payments of arrears of rent and also not vacating the demises premises. Accordingly, ejectment was sought on the grounds of arrears of rent and for personal use and occupation.

In the written statement filed, the defence of the tenants was that the applicants were in possession of many properties within the urban area of Chandigarh and the intention was not fair and an attempt to get the same let out at a higher rent. The main portion of the SCO was in possession of the landlords which fact had been concealed and the rent was being paid at the mutually agreed rate of `40,263/- per month upto April, 2006. After that, they had refused to accept rent. The averments that there was an agreement between the parties to make payment as per revised rates after expiry of the lease deed was denied. Details of the nine different properties, owned by the landlords which was in their possession was given. It was alleged that the petitioners were partners in several firms and had not received any notice dated 02.03.2007 from the Chandigarh Administration, as alleged and were owners of huge business empire. The U.T. Administration had made a policy that the plot owners can, after payment of SAILESH RANJAN requisite fee, get the trade changed in the Industrial Area, Chandigarh and the 2014.12.22 18:18 I attest to the accuracy and integrity of this document CR No.3484 of 2011 (O&M) -4- petitioners had already applied for changing of trade and were raising construction in the said plot and there was no threat of cancellation, as alleged. It was submitted that the petition was not bona fide.

In the replication filed by the respondent-landlords, contents of the written statement were denied and it was submitted that the applicants were in business and the other properties were being used for the business. The properties which were mentioned in the written statement which were in possession of the applicants, were explained as to what was the business being done in the said properties and it was stated that the petitioners were group of individuals in the family and the next generation had grown up with the passage of time. The businesses were different which were being run and the business in G.I. & M.I. pipes could not be run in the other showrooms since the pipes were 20' long and weighed about 4 quintals. Regarding the change of trade in the Industrial Area, it was mentioned that the respondents were not owners of the plot in the Industrial Area and it was denied that they had applied for changing the trade of the Industrial Plot or that they were raising construction.

A perusal of the paperbook would go on to show that issues were framed on 29.07.2008 between the parties and an affidavit came to be filed on 08.12.2008 by way of evidence on behalf of applicant No.2, namely, Shri Ajay Grover, in support of the rent petition, which is verbatim the same, as per the rent petition. Thereafter, the application dated 26.10.2009 (Annexure P5), under Order 6 Rule 17 CPC, was filed. By way of subsequent development in the petition, the same was required to be amended in order to avoid multiplicity of pleadings. The stand taken earlier in the replication was sought to be changed by taking the plea that the applicant No.2 was attorney holder of M/s P.R.Packaging Industries and under the scheme of conversion from industrial to commercial SAILESH RANJAN usage, permission had been applied for regarding Plot No.51, Industrial Area, 2014.12.22 18:18 I attest to the accuracy and integrity of this document CR No.3484 of 2011 (O&M) -5- Phase-II, Chandigarh. The building was to be demolished and revised plan was to be got approved and the business had closed down at the said plot and that M/s Surya Laminates, a tenant in the disputed premises, had vacated and the applicants were in occupation of the area shown in blue colour. The whole of the ground floor was required for carrying on the business of M/s Punjab Iron Store and same could not be done on any of the other floor due to the nature of the business. The landlords could not utilise the area which was vacated by M/s Shah & Company and the minimum area of 6500 sq.ft. was required, which was being used in the Industrial Area earlier. Site plans were appended to show that the respondents did not have access from one area to the other, in view of the petitioners not vacating the premises and the applicants were dealing in GI, MS & PVC pipes, which are having lengths of 20'. Since M/s Surya Laminates had vacated the premises, the amendment was sought to be done to show that it was the only suitable place to run the business comfortably. The amendment was required for proper adjudication of the case and to avoid multiplicity of pleadings.

The application was contested by taking the plea that at the time of filing of the rent petition, the building at Industrial Area had already been converted but this fact was concealed and there was a mala fide intention in the amendment. The affidavit had been filed by way of evidence and as many as eight effective opportunities had been taken for the cross-examination.

As noticed, the amendment has been allowed by the Rent Controller. Learned Senior Counsel for the petitioners has vehemently argued that it is a mala fide amendment which cannot be permitted, as per the settled proposition of law, it is not to be allowed since the plea of subsequent events had been taken and in order to overcome the defence of the tenants, amendment has SAILESH RANJAN been sought for. Reliance has been placed upon the judgment of the Apex Court 2014.12.22 18:18 I attest to the accuracy and integrity of this document CR No.3484 of 2011 (O&M) -6- in Ajendraprasadji N.Pande & another Vs. Swami Keshavrakeshdasji N. & others 2006 (12) SCC 1, Bahadur Singh & another Vs. Avtar Singh 2007 (3) RCR (Civil) 44, Revajeetu Builders & Developers Vs. Narayanaswamy & Sons & others 2009 (10) SCC 84, Arjun Chand Vs. Smt. Shama Joshi 2011 (2) RLR 55 and Mashyak Grihnirman Sahakari Sanstha Maryadit Vs. Usman Habib Dhuka & others 2013 (9) SCC 485.

Counsel for the respondents, on the other hand, has submitted that whether the requirement is bona fide or not can always be considered by the Rent Controller, while deciding the main case and it was a matter of evidence. After the amendment, the basic nature of the rent petition has not been varied and the ground of eviction remains the same, i.e., of personal necessity. The amendment was only clarificatory in nature and even if issues have been framed and trial has commenced, the Court can allow the amendment since the real controversy in the issue is to be decided inter se the parties and the other party can be compensated by way of payment of costs, even if the application is belated. Reliance has been placed upon the judgment of the Apex Court in Sampath Kumar Vs. Ayyakannu & another (2002) 7 SCC 559 and Surender Kumar Sharma Vs. Makhan Singh (2009) 10 SCC 626.

After hearing counsel for the parties, this Court is of the opinion that the issue remains the same as to whether the amendment is to be allowed or not, regarding the plea of eviction, on the ground of personal necessity of the respondent-applicants. The only ground which is taken by the petitioner-tenants is that specific stand has been taken that the property in Industrial Area was subject matter of show cause notice issued by the Chandigarh Administration, on account of usage. The tenants had taken a plea in the written statement that conversion had not been applied and the applicants were not owners. Thus, by SAILESH RANJAN virtue of the amendment, a contradictory plea has been taken that the premises 2014.12.22 18:18 I attest to the accuracy and integrity of this document CR No.3484 of 2011 (O&M) -7- are being converted for commercial purpose. Reference has also been made to the affidavit dated 08.12.2008 by Ajay Grover, in which, it has been allegedly submitted where the landlord had given his consent that the building in the Industrial Area would be demolished and revised plans would be got approved and thus, there have been material concealment in the evidence also regarding the plea taken.

Thus, in the opinion of this Court, the amendment which is sought would basically clarify the issue in question regarding the requirement of the landlords and is clarificatory in nature and as to how they propose to use the premises for the purpose of storing the pipes which were long in length. Specifically a plea has been taken that one of the tenant, M/s Surya Laminates had vacated and the property could not be put to judicious use because the pipes are long in length, in the so-called premises, which were part of the building and restricted the proper usage. It is settled principle that amendment of pleadings ultimately subserve the ends of justice and amendment can be allowed even after the commencement of the trial so that the litigation can be minimised and it is necessary for determining the real controversy and would not cause injustice or prejudice to the other side. Once the applicant-landlords only tried to explain and elaborate the earlier stand taken and even if there was a denial regarding the conversion of the plot at Plot No.51, Industrial Area, Phase-II, Chandigarh, the said factor is not to be kept in mind at the time of allowing the amendment as it is settled principle that the merits are not to be gone into at the time of deciding the application for amendment.

Reference can be made to the judgments of the Apex Court in the case of Lakha Ram Sharma Vs. M/s Balar Marketing Pvt. Ltd. 2008 (17) SCC 671 wherein it has been held that the question of bona fide necessity is to be SAILESH RANJAN examined on merits by the Rent Controller. In the present case and at this stage, 2014.12.22 18:18 I attest to the accuracy and integrity of this document CR No.3484 of 2011 (O&M) -8- it would not be fair to debar the landlords from taking the clarificatory pleas which they have sought to raise in the application for amendment. The principles of amendment have been laid down by the Apex Court on the issue of clarification and after the commencement of trial in Rajesh Kumar Aggarwal & others Vs. K.K.Modi & others 2006 (4) SCC 385 wherein it has been held that the real question in the controversy between the parties is to be adjudicated upon. Relevant portion reads as under:

"This rule declares that the Court may, at any stage of the proceedings, allow either party to alter or amend his pleadings in such a manner and on such terms as may be just. It also states that such amendments should be necessary for the purpose of determining the real question in controversy between the parties. The proviso enacts that no application for amendment should be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter for which amendment is sought before the commencement of the trial.

13. The object of the rule is that Courts 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 the other side.

14. Order 6 Rule 17 consist of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties.

15. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit."

SAILESH RANJAN 2014.12.22 18:18 I attest to the accuracy and integrity of this document CR No.3484 of 2011 (O&M) -9-

Similar observations were made in Sushil Kumar Jain Vs. Manoj Kumar & another 2009 (14) SCC 38 wherein it was held that if the applicants were only seeking to clarify the earlier stand, then such amendment could be allowed even by taking inconsistent pleas of substituted and alternative defence. In Abdul Rehman & another Vs. Mohd. Ruldu & others 2012 (11) SCC 341 wherein the object of the amendment was kept in mind and it was held as under:

"7) It is clear that parties to the suit are permitted to bring forward amendment of their pleadings at any stage of the proceeding for the purpose of determining the real question in controversy between them. The Courts have to be liberal in accepting the same, if the same is made prior to the commencement of the trial.

If such application is made after the commencement of the trial, in that event, the Court has to arrive at a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

8) The original provision was deleted by Amendment Act 46 of 1999, however, it has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The above proviso, to some extent, curtails absolute discretion to allow amendment at any stage. At present, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the rule is that Courts 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 the other side. This Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. The main purpose of allowing the amendment is to minimize the litigation and the plea that the relief sought by way of amendment was barred by time is to be considered in the light of SAILESH RANJAN 2014.12.22 18:18 the facts and circumstances of each case. The above principles I attest to the accuracy and integrity of this document CR No.3484 of 2011 (O&M) -10- have been reiterated by this Court in J. Samuel and Others vs. Gattu Mahesh and Others, (2012) 2 SCC 300 and Rameshkumar Agarwal vs. Rajmala Exports Pvt. Ltd. and Others, (2012) 5 SCC

337. Keeping the above principles in mind, let us consider whether the appellants have made out a case for amendment."

Keeping in view the above principles, this Court is of the opinion that the judgments which have been referred to by counsel for the petitioners, are not applicable to the facts and circumstances of the present case, which has been discussed in detail above. The factum of tenant having vacated part of the premises is sought to be incorporated and even if averments regarding the earlier plea taken if sought to be withdrawn regarding the ownership of the plot in the Industrial Area or the denial of the conversion of the premises is the main subject matter of consideration since the eviction is sought on the ground of bona fide necessity. That it is for the Rent Controller to see at the final stage and in such circumstances, the order allowing the amendment, keeping in view the controversy between the parties, cannot be held to be suffering from any illegality or irregularity, which would warrant interference under Section 15(5) of the Act. However, this Court is of the view that the costs which have been imposed upon the landlords is paltry and liable to be enhanced to the tune of `20,000/-, for the harassment caused to the tenant and to compensate him for contesting the amendment application.

Accordingly, the present revision petition is dismissed. However, the respondent-landlords shall pay a sum of `20,000/- as costs to the petitioner- tenants, over and above to what has been ordered by the Rent Controller, Chandigarh.


            08.12.2014                                                    (G.S.SANDHAWALIA)
            sailesh                                                              JUDGE


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