Delhi District Court
Santosh Rani vs Savitri Devi on 8 May, 2014
1
IN THE COURT OF SH. SHAILENDER MALIK
LD.SCJ/RC,NW/DELHI
Suit No.239/13
Santosh Rani vs Savitri Devi
Order:
1.This order of mine dispose off application moved on behalf of defendant under Order 6 rule 17 CPC seeking to amend the WS filed on behalf of defendant.
2. Before discussing the averrments in the application it is necessary to mention the factual background of the matter. Plaintiff Smt. Santosh has filed the present suit for decree of possession, mesne profit etc against defendant who is tenant in respect of one hall of 65 sq. yd on the ground floor at 3406, Shakur Basti. It is stated that defendant was originally inducted as tenant for Rs.2500/ per month exclusive other charges. However rent kept on increasing and the at time of institution of the suit rent was Rs.3660/. While stating various other facts, it is stated that tenancy of the defendant was terminated vide legal notice dated 20.02.2013 which was duly replied by the defendant. However, defendant refused to vacate the tenanted premises therefore, present suit was filed.
3. Defendant after being served with summons filed WS taking various objection. However, had admitted the tenancy and also admitted the rate of rent of Rs.3660/ and has also not disputed service of notice to quit dated 20.02.2013.
4. In such factual background, plaintiff moved an application under Order 12 rule 6 CPC seeking decree of suit of plaintiff for relief of possession on the alleged admission made by defendant in her WS.
25. During pendency of the above said application of plaintiff under Order 12 rule 6 CPC present application has been moved now seeking to amend the WS on the ground defendant being illiterate lady and being house wife and never understood the intricacies the judicial process and in fact defendant is tenant in the suit premises for monthly rent of Rs.2500/, which defendant has been regularly paying to the plaintiff though plaintiff used to take her sign on receipt but defendant denies to have gone through the contents of the receipt. It is stated that in proposed amendment defendant seeks to plead that in fact rent was never increased from Rs.2500/ and thus, defendant now want to deny current rate of rent Rs.3660/. By proposed amendment defendant also seeks to incorporate the objection of bar of Section 50 of DRC Act an also to state that tenancy is covered under DRC Act. Defendant also seeks to amend the WS to incorporate the facts that receipts relied upon by the plaintiff are forged and fabricated and it is also sought to be pleaded facts stated in earlier WS were never told and explained the earlier counsel to the defendant. It is therefore, stated that in the proposed amendment that earlier counsel also compelled and mis represented the defendant to deposit rent of Rs.3660/ for period of 17.03.2013 to 16.04.2013 and from 17.04.2013 to 16.07.2013 @ 4026/. Defendant also want to incorporate that in fact earlier counsel of the defendant did not act as per the directions/ instructions of the defendant and obtained the signatures of the defendant without explaining the contents of the WS. Moreover, defendant now seeks to plead in the WS that she never received any notice u/s 8 of DRC Act for increasing the rent. Therefore, it is prayed that above said fact may be allowed to be incorporated in WS by way of deleting para 3 of earlier WS , by substituting by newly inserted para 3 in the WS alongwith preliminary objection no.8 and also to include necessary changes in the prayer clause of the WS.
6. Reply to this application has been filed on behalf of the plaintiff taking the objection that application of the defendant to seek the amendment of WS is not maintainable and thus is liable to be dismissed as proposed amendment is only 3 a effort to take away the admission of facts made by the defendant in her WS. It is therefore, pleaded that in fact by proposed amendment defendant is trying to make faint attempt to create moon shine defence only with the intention to avoid the decree of possession on the basis of admission already made by defendant. It is stated that application is not maintainable and is also contrary to the basic principle of law and thus is liable to be dismissed. While denying the averrments of the application and the proposed amendment it is stated that rent receipts have been deposited by defendant @ Rs.3660/. Moreover, defendant herself had filed petition u/s 27 of DRC Act seeking to deposit the rent @ 3660/ and 4026/ respectively. Rent receipts no.249 has been relied upon by defendant herself, the counter foil of which has been relied upon by plaintiff in the present suit.
7. I have heard ld. Counsel for the parties. It is argued by Ld. Counsel for the defendant that earlier WS and petition u/s 27 of DRC Act were filed on behalf of defendant were prepared by earlier counsel without taking proper instructions and therefore, the correct facts could not be pleaded. He submits that in fact rate of rent is still Rs.2500/ per month and therefore, the present suit is not maintainable. It is for these reasons, the proposed amendment has been sought. He in this regard relies upon the judgment of Apex Court in Usha Bala Sahab Swami vs Kiran 2007 (2) RCR Civil 830. it is submitted that even by way of amendment of WS the admission can also be allowed to be withdrawn. He further submits that law with regard to amendment of WS is required to be liberal construed. He has relied upon the judgment of Apex Court in Baldev Singh vs Mahavir Singh 2006 (3) RCR Civil 844. He has also relied upon the judgment of Apex Court in Sunshine India vs Bhai Manjit Singh (HUF) & Ors. 2013 VIII AD Delhi 189.
8. On the other hand Ld. Counsel for the plaintiff has vehemently opposed the application on the ground that in fact proposed amendment is faint attempt on to cover up the well established admission of defendant which is not 4 permissible in law. He submits that defendant is now trying to escape from liability by only blaming the previous counsel. Whereas, in that proposed amendment defendant is trying to mis lead the court by stating that defendant has never received any legal notice for enhancing the rent. Counsel submits that he has relied upon the notice dated 20.03.2001 sent on behalf of the plaintiff for enhancing the rent and same was duly replied by defendant and rent was enhanced. Moreover, on the rate of rent @ Rs.3660/ defendant herself filed the petition u/s 27 of DRC Act and deposited the rent also. Similarly she had filed the petition u/s 27 of DRC Act to deposit rent @ 4026/ without even assistance of counsel. He submits that these documents clearly establish that defendant was well aware and has been paying rent for Rs.3660/ or more. Moreover, defendant has also relied upon rent receipt no.249 which plaintiff has relied upon by counter foil in the present case. Counsel for the plaintiff submits that amendment if WS can not be permitted when defendant has already a candid admission about rate of rent and also about service of notice to quit. He relies upon judgments in Modi Spinnings vs Weaving Mills 's case AIR 1977 SC 68, Rajesh Kumar Aggarwal vs K.K. Modi AIR 2006 SC 1647, M/s Mahendra Radio & Television vs SBI AIR 1988 All. 257 and judgment of Delhi Hgih Court in Madhu Sudan Gupta vs Dinesh Gupta decided in 16.10.2010 and Apex Court decision in Revajeetu Builders & Developers vs Narayan Swamy & Sons (2009) 10 SCC 84.
9. Having heard the submissions at bar and having considered facts of case and proposed amendments sought to be incorporated in WS, it be noted that amendments of pleadings is one issue in civil proceedings which keep on cropping in frequently, primarily due to necessity of bringing proper and necessary changes in pleadings. Superior Courts, have consistency been pronouncing that amendment of pleadings in view of provisions of Order 6 rule 17 CPC should be liberally construed and all those amendments which are necessary for "proper adjudication" of the matter, must be allowed. However, it be noted that this well established legal proposition on issue of amendment of 5 pleadings have been sought to be pressed to disadvantage of other side. Therefore, no doubt court must at initial stages of trial of suit, be liberal in allowing in amendment of pleadings, but every amendment sought can not be allowed, without application of judicial mind to see whether such amendment are really necessary in larger interest of parties and to properly adjudicate the lis. Also to see, whether propose amendment completely change the very nature of case/ version of either party which may cause irreparable injustice to other side. No doubt court is also not required to go into scrutiny of merits of proposed amendments sought, but having said, court can not mechanically allow, every type amendment sought. In Rajesh Kumar Aggarwal and Ors. v. K. K. Modi and Ors. ((2006) 4 SCC 385), while emphasising on the underlined principles of O. VI, R. 17 of the Code of Civil Procedure, it was held :
"The object of the rule is that the 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. Order 6, R. 17 consists of two parts. Whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleadings. 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. ..........The Court always gives leave to amend the pleadings of a party unless it is satisfied that the party applying was acting mala fide. There is a plethora of precedents pertaining to the grant or refusal of permission for amendment of pleadings. The various decisions rendered by this Court and the proposition laid down therein are widely known. This Court has consistently held that the amendment to pleading should be liberally allowed since procedural obstacle ought not to impede the dispensation of justice."
10. Coming out to the facts of the case, while escaping to comment on the merit as application under Order 12 rule 6 CPC of plaintiff is yet to be decided, it would be clear that on one hand defendant has stated rate of rent to be 6 Rs.3660/ in DR petitions no. 23/13 filed by her without any counsel. Moreover, had also filed another DR petition mentioning the rate of rent to be Rs.4026/ and has also not disputed in the WS of this case, rate of rent to be Rs.3660/ now coming up with the amendments to plead in the WS that in fact rate of rent is Rs.2500/ and has not been increased for such long time as defendant was never served with the notice u/s 8 of DRC Act for increase of rent. This fact, is all together contrary to not only record and the stand taken by the defendant earlier which clearly show that defendant is trying to change completely her entire defence.
11. No doubt there are many judgments to pronounce that defendant by way of amendment can take alternate defence or in consistent please or can also even seek to amend WS to clarify any admission made earlier but as stated above amendment can not be allowed on the asking of one party which can be prejudicial to the interest of other party. In the present case also defendant is not asking for any alternate defence or clarification as to admission if any made in her WS. Rather defendant is all together changing the version as to the rate of rent by simply putting blame, on the previous counsel. One can imagine a situation where a lawyer might have taken certain steps without properly taking the instruction from the client and has taken some stands in the pleadings. But in that situation it would be very obvious that client after changing the counsel would take some steps against that erring lawyer for taking a stand or admission without having proper instruction. In this case though blame has been made on the previous counsel without even making any complaint which clearly show that defendant is only trying to cover up the lacuna. Moreover, as stated above there is many documents on the record clearly showing that defendant herself stated the rate of rent to be Rs.3660/ or more per month. In the DR petition filed by the defendant herself, defendant has relied upon a rent receipt no.249 in which rate of rent is mentioned as Rs.3660/, the counter foil of which has been relied upon by the plaintiff in the present suit. This clearly and establish that it was defendant who has stated the rate of rent to be Rs.3660/. Beside this it was 7 also stated in the present application that defendant has never received any notice of increase of rent but this fact is also against the record because notice dated 20.03.2001 was sent to the defendant which was replied by the defendant through her counsel on 09.04.2001. Similarly, notice to quit dated 20.02.2013 sent on behalf of the plaintiff to defendant has been received by the defendant and replied on 02.03.2013. in that reply of the defendant, she has stated the rate of rent to be Rs.3660/.
12. All these facts and documents clearly establish that defendant is not simply seeking to amend her WS rather by way of amendment she is seeking to completely change her case which to my mind is not only impermissible in law but is also prejudicial to the other side.
13. So far as the judgment relied upon by the ld. Counsel for the defendant, Ld. Counsel has relied upon judgment in Usha Bala Sahab Swami's case (Supra), in that case Hon'ble Apex court has held that amendment of written statement can be allowed to explain the admission in written statement or by way of amendment in consistent pleas can be taken. Having gone through this judgment, it was a case where it was held that amendments can be allowed to give explanation about the admissions if any made in the WS. That case is evidently, distinguishable on facts because in present case by proposed amendments defendant is not trying to give any explanation to admission nor is trying to make a inconsistent or additional plea in the WS which of couse is even permissible as per Order 8 CPC. But in the present case defendant is trying to completely change the facts as stated in the WS and is making an effort for withdrawing the admission regarding rate of rent , service of notice etc.
14. Similarly, the other judgment relied upon by the defendant in Baldev Singh's case (Supra), that case was pertaining to taking of inconsistent pleas by defendant which is even permissible under the law and there is no dispute with regard to such proposition of law. However, in the present case defendant 8 is trying to withdraw her earlier admission by just blaming on previous counsel and also not taking any step. Thus, the said judgment is also of no help to defendant. Counsel for the defendant has also relied upon the judgment of Delhi High Court in Sunshine India Pvt. Ltd. case that judgment is also different on facts. However, legal proposition as to amendment of pleadings are well established and discussed above.
For the reasons stated above I do not find any merit in the application hence same stands dismissed.
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Announced in opened court on th 8 May 2014 (SHAILENDER MALIK) SCJ/RC,NW/DELHI/08.05.14