Punjab-Haryana High Court
Jai Krishan Kumar vs Lal Chand (Died) on 2 December, 1992
Equivalent citations: (1993)104PLR48
JUDGMENT Jawahar Lal Gupta, J.
1. The appellants are aggrieved by the order dated March 6,1991 passed by the appellate authority, Hissar by which the application under Order 6 Rule 17 filed by the respondent for amendment of the written, statement has been allowed and the case has been remanded for fresh trial. A few facts may be noticed.
2. The appellants filed a suit seeking a decree for possession of Shop No. 382-A, situate at Automobile Market, Hissar as also for the recovery of Rs. 3600/- on account of damages for use and occupation of the said shop from April 1, 1985 till December 31,1985. It was claimed that the construction of the shop was completed in the month of January 1980 and thereafter the appellants let out Shop No. 382- A to the defendant-respondent an rent at the rate of Rs. 325/- per month. Later on the rent was enhanced to Rs. 400/- per month. The appellants claim that by notice dated November 1, 1983, the tenancy was terminated. The respondent having failed to hand over the vacant possession, a suit for possession and recovery of damages was consequently filed. The learned trial Court framed, 9 issues and by its judgment dated September 20, 1988, it partly decreed the suit to the extent that the plaintiff-appellants were entitled to the possession of the shop. The claim in respect of the recovery of Rs. 3600/- was dismissed as it had not been pressed by the counsel for the plaintiffs.
3. Aggrieved by the judgment and decree, the respondent filed an appeal before the appellate authority. During the pendency of this appeal, an application for amendment of the written statement was filed. In this application, it was inter alia averred that the respondent-appellant was a tenant in Shop No. 381 which belonged to Om Parkash son of Shri Manohar Lal. It was also averred that the shop was taken on rent vide rent deed dated March 7, 1980 It was further averred that while filing the written statement, it was bonafide believed that the suit related to shop No. 381 and as such, a specific plea to the above effect namely that the tenancy was not in respect of Shop No. 382-A but only in respect of Shop No. 381 belonging to Om Parkash, could sot be taken. It was claimed that the omission was bonafide and therefore, permission to amend the written statement may be given
4. The application was opposed by the present appellants. It was inter alia averred that the respondent was estopped from filing the application by his acts and conduct and that the respondent had been adopting dilatory tactics. By way of illustration, it was mentioned that after obtaining number of adjournments, an application, under Section 34 of the Arbitration Act was filed, which was dismissed. It was further averred that after the framing of the issues, he had filed an application for additional issues only with the object of delaying the proceedings. Reference was also made to the effect that the respondent had admitted in his reply to the notice before the filing of the suit that he was tenant of Shop No. 382-A. On these premises, the prayer for amendment was opposed.
5. The learned appellate authority having allowed the application and set aside the judgment and decree of the trial Court remanded the case for fresh decision. Aggrieved by this order, the appellants have come up in this appeal.
6. I have heard the learned counsel for the parties.
7. The learned counsel have also produced before me the record of the proceedings before the trial Court as also the documentary evidence. On perusal of the record, the following facts appear to be clear :-
1. Notice dated November 1, 1985 was sent by post to the respondent at Shop No. 382-A, Automobile Market, Hissar A copy of this notice appears to have been produced on record as Exhibit P 4. In this notice, it has been clearly mentioned by the counsel for the appellants that "my clients are owners and landlord of Shop No. 382-A situated in Automobile Market, Hissar; that shop No. 382-A was constructed in January 1990 and that, the shop in question was given to you on rent at a monthly rent of Rs. 325/-from 1.2.1980 to 31.3 1980"vide rent deed dated 7 3.1980 and the present rent is Rs. 400/- P. M." A reply to this notice was sent by the respondent through his counsel while giving the address of the respondent in which it was inter alia mentioned as----......."Under instructions from and on behalf of my clients M/s. Lai Chand s/o. Parhlad Rai sole Proprietor of Single Type House, Shop No. 382-A, Automobile Market, Hissar------" The statement in the notice that M/s. Jai Krishan Kumar s/o Ora Parkash and Om Parkash s/o Manohar Lal are landlords of Shop No. 382-A situate in Automobile Market, Hissar and that this shop was given on rent to Lai Chand, was specifically admitted.
2. In the suit filed by the appellants for the possession of Shop No. 382-A in paragraph 4, it was specifically stated as under :- "That the said building was taken by defendant on rent for 2 months from 1.2 1980 to 31 3.1980 on a monthly rent of Rs. 325/- per month and thereafter its rent was increased to Rs. 400/- per month". In reply to the above, it was stated by the respondent that he was a statutory tenant in the shop in question.
3. In the plaint, the respondent Lai Chand was sued as sole proprietor of M/s Singla Tyre House, Shop No. 382-A, Automobile Market, Hissar.
4. At the hearing of this appeal the learned counsel for the respondent was specifically asked if there was any other shop in his possession as a tenant He admitted that except the shop which was the subject matter of this litigation, there was no other shop in his possession as a tenant.
8. In view of the above position, it is apparent that there is only one shop in possession of the respondent as a tenant and that dispute between the parties relates only to that shop. Even though, in the rent note, it has beers described as Shop No. 381, at subsequent stages the shop had been identified by No. 382-A. As mentioned above, the notice Exhibit P.4 was served on the respondent at Shop No. 382-A. The notice of the suit also appears to have been served on the respondent at the same address. In the notice as well as in the plaint, there is a specific statement that the respondent was in occupation as a tenant of Shop No. 382-A. On both the occasions, this factual position has been admitted by the respondent. In this situation, it appears to be clear that the plea raised on behalf of the plaintiff-appellants that the respondent was adopting dilatory tactics and that the amendment was not necessary to determine the real controversy between the parties appears to be well-founded.
9. It is no doubt correct that the provisions regarding the amendment of pleadings has to be liberally construed. It is also correct that permission for amendment should normally be granted when such an amendment is necessary for determining the real controversy between the parties and the parties can be adequately compensated by payment of costs. However, in the present case, it appears that the request for amendment during the pendency of the appeal had been made with the object of gaining time. It is also clear that the dispute between the parties relates only to one shop and, therefore, the amendment is not absolutely essential for determining the real controversy between them.
10. The appellate authority appears to have taken the view that the landlord could be compensated by the payment of costs. Accordingly, it awarded Rs. 500/- as costs. A perusal of the record shows that the suit was filed in December 1985. It was decided by the trial Court on September 20, 1988. The application under Order 6 Rule 17 appears to have been filed in May, 1988 It is thus apparent that the respondent-tenant has moved at leisurely pace and taken his sweet time to make the prayer for amendment. In such a situation, it does not appear to be fair that a tenant should be allowed to amend the pleadings and virtually set at naught all that has happened during the last, many years.
11. The application for amendment in the context of the factual position as noticed above appears to be an abuse of the process of law. It is consequently rejected.
12. As a result, the appeal is allowed. The order of the appellate authority is set aside and the case is remanded to the appellate authority for decision on merits. No costs.