Delhi District Court
Manish Tanwar vs Subodh Kumar Wadhwa on 29 May, 2014
IN THE COURT OF MS. SHAMA GUPTA: CIVIL JUDGE : 03
CENTRAL
TIS HAZARI COURTS : DELHI
Suit No. 96/11
Manish Tanwar
.......... Plaintiff
VERSUS
Subodh Kumar Wadhwa
.........Defendant
Present: Defendant in person.
O R D E R
1. Vide this order, I shall dispose of the application U/o 6 rule 17 r/w section 151 CPC filed by the defendant seeking amendment in the WS and by virtue of the same, the defendant is seeking substitution of the word defendant in place of respondent. The defendant further prayed for amendment thereby adding certain paras in the preliminary objection thereby mentioning the facts that the lease between the parties was never canceled and no license was created between the parties at any point of time.
2. The defendant further wants to add that the late father of the plaintiff and his brother Sh. Manoj Tanwar has asked the defendant to take Suit no. 96/11 Manish Tanwar Vs. Subodh Kumar 1/7 the room no. 202 for commercial premises like the lease of room no. 204 and the lease is still subsisting for residential use w. e. f. 01.08.2007 @ of Rs. 1400/ p.m. and although the rent has been paid up to date but it requires adjustment in future rent for the amount of Rs. 4,000/ paid on 01.06.2000 as well Rs. 10,000/ paid vide cheque no. 502002 dated 23.11.2007 as given to the plaintiff as friendly payment to be adjusted in rent account.
3. The defendant by virtue of amendment further wants to incorporate the fact that due to Central Government Notified Master Plan of Delhi (MPD2021) show cause notice was issued by DDA on or after 18.04.2006 for misuse of building of the suit property but, the plaintiff continued to receive the monthly rent of Rs. 4200/ till July 2007 for premises on the same floor i. e. room no. 204.
4. In para no. 5 of Preliminary Objection after the words, the circle rate of area, the defendant want to substitute the following expression i. e. "The plaintiff did not bring down the rent of Rs. 1,0001200/ per month in the partly sealed and partly vacant building, however, the plaintiff agreed to reduce the monthly rent for defendant's premises i. e. room no. 202 to Rs. 1400/ in the month of August 2007. Plaintiff received this amount in the form of Rs. 2000 by cash and Rs. 5000/ by cheque for the rent of preceding 5 months @ Rs. 1400/ per month w. e. f. 01.08.2007, thus, the last paid rent has been at the monthly rate of Rs. 1400/ which has been paid upto date by the defendant to the plaintiff without any protest.
Suit no. 96/11 Manish Tanwar Vs. Subodh Kumar 2/7
5. Before para no. 6 of Preliminary Objection, the defendant want to add, therefore, the defendant stopped all commercial activities in the suit premises and started using the suit premises for residential nature in accordance with the prevalent condition of the intended sealing drive of DDA/MCD in or about JuneJuly 2007 on the instructions of the plaintiff and his brother Manoj Tanwar when they agreed to reduce the rent of the suit premises to Rs. 1400/ per month and that of room no. 204 to Rs. 1450 per month w. e. f. August 2007, as one third of the then agreed commercial rent.
6. In para no. 1 of the para wise reply, the defendant wants to substitute "that the fact the plaintiff is the defendant's land lord of Room No. 202 at a monthly rent of Rs. 1400/ is not denied and the said fact is asserted. The para under reply is wrong and denied, because the lease was created in favour of the defendant by the plaintiff, his brother and father as the defendant has already having tenancy right in room no. 204. The plaintiff received the sum of Rs. 4000/ as refundable security at the time of creation of tenancy in June, 2000 by A/c payee cheque no. 632341 on or about 1.6.2000 drawn on Citi Bank, New Delhi main branch. In addition to the rent, the plaintiff had again received Rs. 10,000/ during financial year 200708, as on account payment, which he is liable to adjust in rent account, No rent at the rate of Rs. 4200/ per month has been paid to the plaintiff after 01.8.2007. It is denied that the premises is given to the defendant either temporarily, or for three years only or as a licensee, it is asserted here that presently the defendant is the lessee at monthly rent of Rs. 1400/, which is being received by plaintiff without any protest till now".
Suit no. 96/11 Manish Tanwar Vs. Subodh Kumar 3/7
7. In para 2 of para wise reply, after the words, "Without any protest" the defendant wants to substitute that, "The relations between the parties had been so cordial that the brother of the plaintiff Sh. Manoj Tanwar let out room no. 205206 to the wife of the defendant for residential use at a monthly rent of Rs. 2000 as on 01.4.2007. Even the commercial tenancy of the suit premises was changed mutually to residential tenancy in JuneJuly 2007 but w.e.f. 1.8.2007 and the plaintiff agree to take rent at the rate of Rs. 1400/ per month for the room no. 202. Therefore, the question of license, unauthorized or illegal possession does not arises.
8. Before para 5 of the para wise reply, the defendant wants to substitute that " that para 5 of the plaint is wrong and denied. However, the plaintiff admits creation of tenancy by his conduct. However, the alleged notice dated 24.04.2008 is illegal, null and void because it is based upon false allegations, not based upon true facts i. e. rent of Rs. 1400/, its arrears as well as amount demanded, so as to create a false ground of eviction, specially because no cause of action for the suit ever arose on true facts. It is wrong that plaintiff is entitled to any amount of damages, when the residential lease is subsisting and when most of the building is lying vacant for want of residential tenant.
9. In place of para 6 of para wise reply,the defendant wants to substitute" that para 6 of plaint is wrong and denied. No demand has ever been made by the plaintiff as alleged. The suit property is part of a building in village abadi area with narrow/dirty lines, and when most of the building lying vacant only due to prohibition of commercial use. After the Suit no. 96/11 Manish Tanwar Vs. Subodh Kumar 4/7 sealing drive effected by MCD in August 2007, the plaintiff at that time was seeking tenants for residential use for the rooms @ rent of Rs. 1000 1200 per month. Therefore, the plaintiff agreed for accepting rent @ Rs. 1400/ and 1450/ per month from the defendant in respect of other premises room no. 202 & 204 respectively, through himself and through his brother Sh. Manoj Tanwar. It may be mentioned here that due to residential use, the plaintiff's brother had given room no. 205206 on rent to Smt. Sheetal Wadhwa, wife of the defendant at a monthly rent of Rs. 2000/. In April 2007 for residential use, and at that time the plaintiff held the defendant in good respect in terms of payment and agreements".
10. In para 10 of the para wise reply, the defendant wants to substitute that, " However the inherent jurisdiction of Hon' ble Court is denied because the present tenancy is legally protected under the provisions of Delhi Rent Control Act, 1958".
11. Reply to the present application has been filed by the plaintiff whereby he has opposed the amendment as sought stating that by virtue of amendment, the defendant wants to withdraw the admissions made by the defendant in his WS and thus, it is stated that he wants to change the entire nature of his defence. It is stated that the defendant has admitted the termination notice and his status of unauthorized occupant thus, he can not be permitted to withdraw the admissions being made by him. It is further stated that the defendant wants to withdraw his admissions about monthly rent of premises @ Rs. 4200/ and further to create a case of new license of residential premises at monthly rent of Rs. 1400/ w. e. f. August, 2007. The plaintiff has denied all the facts made by the defendant in the application.
Suit no. 96/11 Manish Tanwar Vs. Subodh Kumar 5/7
12. Arguments were addressed by Ld. counsels for both the parties and further, defendant has placed on record written arguments.
13. In the present matter, WS of the defendant as originally filed by the defendant reveals that the defendant though admitted the earlier rate of rent @ Rs. 4200/ after enhancement from Rs. 4000/ for the suit property since 01.06.2000 but he has mentioned about the sealing drive and also about the agreement as to reduction of rent to Rs. 1400/ per month since August 2007 and has also mentioned about the payment made by him by cheque no. 116100 for payment of rent upto March 2008. He has also mentioned about refundable security of Rs. 4000/ paid by cheque bearing no. 632341 on 01.6.2000 of which he is seeking adjustment by virtue of the amendment, thus, the amendment as sought by the defendant merely appears to be explanatory as to what has already been stated by the defendant in the WS and it can not be said to be withdrawal of the admissions made by the defendant in the WS.
14. Further, by virtue of amendment, no new defence has been put forth by the defendant by the proposed amendments and they are merely explanatory to what has already been pleaded in the WS.
15. Further, if the amendment is allowed no prejudice will be caused to the plaintiff which can not be compensated by cost as the plaintiff has sufficient opportunity to rebut the same since the present suit is still in its initial stage and even the issues has not been framed till date.
16. Further, the law relating to amendment of WS is more liberal Suit no. 96/11 Manish Tanwar Vs. Subodh Kumar 6/7 as compared to the amendment of the plaint and since the amendment appears to be necessary for adjudication of real controversy between the parties. Thus, no ground is made out for dismissal of the application of the defendant.
17. But keeping into consideration, that the defendant has already filed the WS and all the facts which the defendant wants to incorporate by virtue of the present application were already within the knowledge of the defendant when the original WS was filed and those were not incorporated in the original WS, therefore, cost of Rs. 1000/ is imposed on the defendant to be payable by the defendant to the opposite party. Subject to payment of cost, the application of the defendant under order 6 rule 17 CPC is allowed. Defendant is directed to file the amended WS within 15 days.
Put up for further proceedings on 06.08.2014.
(SHAMA GUPTA)
CIVIL JUDGE03C/THC
DELHI /29.05.2014
Suit no. 96/11 Manish Tanwar Vs. Subodh Kumar 7/7
CS No./11
.2014
Present: None.
Vide separate order of even date,
(SHAMA GUPTA)
CIVIL JUDGE03C/THC
DELHI /.2014
Suit no. 96/11 Manish Tanwar Vs. Subodh Kumar 8/7