Delhi High Court
R. Gupta Alias Raj Gupta vs Nirmal Nanda And Anr. on 25 April, 1988
Equivalent citations: 35(1988)DLT206, 1988RLR410
JUDGMENT P.K. Babri, J.
(1) This appeal has been filed under Section 39(2) of the Delhi Rent Control Act against the judgment dated April 23, 1987, of Mr. M.A. Khan, Rent Control Tribunal, by which he dismissed the appeal brought against the order dated April 4,1987, of Mr.Ajit Bharihoke, Additional Rent Controller, dismissing the application of the appellant seeking amendment of the written statement in order to take a new plea that initially the appellant alone was not the tenant in the premises in question but a partnership firm under the name and style of M/s. D P. Gupta & Company was the tenant.
(2) Smt. Nirmal Nanda respondent No. 1 in this appeal is the landlady of the premises in question and she brought the eviction petition on August 14, 1984, pleading that the premises in question part of house No. C-11, N.D.S.E. Part Ii, New Delhi, had been let out to the appellant with effect from 1st July 1963 at the rental of Rs. 450.00 per mensem for residential purposes and he has without the written consent of the landlady sublet, assigned and parted with possession of the said premises in favor of M/s. Dp Gupta & Company (P) Limited in July 1984 and the tenant himself has built/acquired vacant possession of the premises at C-729 . New Friends Colony, and that the respondent-tenant has caused substantial damage to the premises. These grounds are covered by clauses (b), (h) & (j) of sub-section (1) of Section 14 of the Delhi Rent Control Act. The appellant filed the written statement in which he made an admission that he had initially taken the premises in question on rent but he took the plea that he was a partner of M/s. D.P. Gupta & Company which comprised of three partners, namely, the appellant. Raj Gupta and D.P. Gupta in 1976 and M/s. D.P. Gupta & Co. Private Limited was incorporated under the Indian Companies Act and the said Company took over all the assets and liabilities of the said partnership firm and on the request of the appellant the landlady accepted the said Company as a tenant in the premises in dispute in place of the appellant. So, according to the case set up in the written statement, the appellant ceased to be the tenant as he surrendered the tenancy rights and the landlady created the tenancy in favor of the Private Limited Company. It was admitted fact that the premises had been let out for residential purposes and that the appellant bad constructed his own new residential house where he has shifted. In replication the landlady controverter the averments of the appellant that any tenancy had been created in favor of the said Company.
(3) During the pendency of the case, on application being moved by the appellant, the said Company was also added as respondent No. 2 in the eviction case. The landlady completed her evidence on August 12, 1986. The appellant appeared as RW1 and completed his evidence. The Company examined two witnesses and also completed the evidence. The case was fixed for final arguments and then the appellant moved the application seeking amendment of the written statement in order to take the plea that in fact, he had not taken the premises in question as a tenant in individual capacity and initially the said partnership firm comprising of three partners including the appellant had taken the premises on rent. It was pleaded by the appellant that he made a wrong and erroneous admission of fact and he was under the wrong impression throughout that he alone is the tenant in the premises in question and while he was searching some old record, he came across two letters, one copy of the letter dated 1st July 1963 written by him on behalf of M/s. D.P. Gupta & Company mentioning about taking of the premises on rent and the other is the reply given by the landlady of the same date accepting the terms and conditions of the tenancy given in the aforesaid letter. So, it was sought to be pleaded that in fact, the premises were taken on rent by the partnership firm and by mistake for all these years the appellant bad been considering himself to be the sole tenant in the premises in question and so he prayed that the appellant may be allowed to amend the written statement to take the correct plea in the written statement. This amendment is not sought without some purpose. It is obvious that if on merits a finding is given that the appellant never surrendered the tenancy and the landlady never accepted the Company as tenant, the appellant has no case and the eviction order was bound to follow but if the appellant now is allowed to amend the written statement the effect would be that not only the appellant alone but his other two erstwhile partners would be also deemed to be tenants in the premises in question and thus the ground covered by clause (h) that the tenant has acquired another residence may not be available to the landlady and it may also result in sufficient delay in the disposal of the case because then the whole case will have to be tried again on new pleas which may be raised not only by the appellant by seeking amendment of the written statement but by his other two partners by filing a new written statement after the partnership firm is joined as a respondent. As far as the law is concerned, it is almost settled that no party can be allowed to withdraw admission made in the pleadings without any sufficient reasons. (See Panchdeo Narain Srivastava v. Km. Jyoti Sahay, . In the present case this particular appellant has not only made an admission in the pleadings that he alone took the premises on rent initially but he reiterated his plea when he appeared in the witness box and same plea remained intact while cross-examining Smt. Nirmal Nanda and it also came out in the evidence that although the rent was being paid to the landlady from the partnership account yet it was the appellant alone who was being debited with that rent in his account in the partnership meaning thereby that at no point of time the partnership claimed any tenancy rights in the premises and it has been the uniform case of the appellant and his partnership firm that appellant is tenant in his individual capacity in the premises in dispute. It is also significant to mention that in 1984 a civil suit was brought seeking injunction restraining the appellant from subletting or parting with possession of the premises in question to anyone when appellant was in the process of shifting to his new house. An injunction was also granted ex-parte but the appellant took the plea when he appeared in that suit that in fact, he had given the premises in question to his own brother as a licensee and that possession has been delivered even before service of the ex-parte injunction order. Again in that case, it is brought to my notice by the learned counsel for the respondent, the appellant admitted that he alone is the tenant in the premises in question. All these facts have been mentioned in the reply to the show cause notice by the respondent-landlady which are not in dispute before me.
(4) Counsel for the appellant has cited Vishwa Nath and Another v. Chaman Lal Khanna & Another, , where this Court has upheld the allowing of amendment by the tenant to withdraw an admission. In the cited case, the case of the landlord was that Vishwa Nath was the tenant whereas Vishwa Nath took plea that the Company was the tenant. The finding was given by the Controller that Vishwa Nath was the tenant. Vishwa Nath then filed an application seeking amendment in order to plead that he was the tenant and not the Company and that was in consonance with the finding of the Controller and was also the case of the landlord. In such circumstances, the Court held that amendment could be allowed as tenant can be allowed to withdraw erroneous admission made by him. The facts are totally different. In the cited case, it was the case of the landlord also that Vishwa Nath was the tenant. So, in order to bring his case in consonance with the case of the landlord that the tenant was allowed to amend the written statement. In M/s. Modi Spinning & Weaving Mills Co. Ltd. & Another v. M/s. Ladha Ram & Company, , the Supreme Court clearly laid down the law that the amendment which has the effect of displacing the case of the plaintiff completely and also amount to withdrawal of admission made in the pleading cannot be allowed. In the cited case, the plaintiffs filed a suit for recovery of money. The defendant filed a written statement taking the plea that agreement dated April 7, 1967, was not applicable to the transaction in which the plaintiff works as a stockiest-cum-distributor and the agreement is not applicable to the transaction in which the plaintiff acted as a principal. In para 26 of the written statement, the plea taken was that even if the said agreement was applicable to the transactions in suit the plaintiff's position was merely of an agent of the defendant and as such the plaintiff is not entitled to claim any damages for non-supply of the goods. After three years the defendant wanted to delete both paras 25 & 26 and substitute two new paras to take the plea that by virtue of an agreement the plaintiff was appointed a mercantile agent and the plaintiff acted in that capacity in placing the orders on defendants. They also denied the allegation of the plaintiff that the plaintiff placed the orders with the defendant in the plaintiff's capacity as an agent of the defendants. They sought to take the plea that the plaintiff throughout acted as an agent of the defendants. This application was rejected by the trial Court on the ground that it amounts to repudiation of the clear admission which is a motivated one in order to deprive the plaintiff of his valuable rights. The High Court also affirmed the order. The Supreme Court held that such an amendment cannot be allowed which had the effect of not only withdrawing of admissions already made by the defendants but also of displacing the case of the plaintiff completely. In the present case, it must be remembered that the appellant has not only made a vital admission in the written statement that he alone took the premises on rent but he also gave sworn testimony before the Controller that he alone had been the tenant in the premises in question. It is also pertinent to mention that the landlady in para 14 of the eviction petition did not say that any written agreement was executed or any documents were exchanged while creating the tenancy in favor of the appellant. In the written statement the appellant did not controvert this fact. It is impossible to believe that in case tenancy had been created in the name of partnership initially the appellant would have forgotten this material fact while drafting the written statement and giving the statement in Court. It is not out of place to mention that two letters now being sought to be brought on record are controverter by the landlady. The possibility of such documents being forged cannot be completely over-ruled. It is true that this is not the stage for this Court to give any finding with regard to the genuineness or otherwise of the said two documents but while deciding the application seeking amendment of the written statement which has the effect of withdrawing not only the admission made by the appellant but of displacing the case of the landlady completely, this fact cannot be lost sight of that such a document can be forged. It is not possible to believe that the appellant remained ignorant of these documents for all these years and one fine morning he discovered those documents so as to come forward with a new plea. In Haji Mohammed Ishaq Wd. S.K. Mohammed & Others v. Mohammed Iqbal and Mohammed Ali & Co. was laid down that an amendment of the written statement cannot be allowed if it introduces a new case.
(5) Counsel for the respondent-landlady has cited Neera Grover & Another v. Narinder Jaggi, and Indo American Electricals Ltd. v. M.L. Sharma, , where Yogeshwar Dayal, J (as His Lordship then was) laid down that the tenant cannot be allowed to seek amendment of the written statement which had the effect of withdrawing the vital admission of facts made therein. These two judgments were approved by the Full Bench in Suit No. 420/79. M/s. Doors & Boards Agencies v. M/s. Gael Bros & Another, decided on May 25,1984. 8. Lower Courts have exercised their discretion in declining the prayer of the appellant seeking amendment of the written statement for good reasons. It is not proper for this Court to intervene with the said discretion exercised by the two courts below which is not shown to be vitiated by any illegality in any manner.
(6) Keeping in view all the facts and circumstances, I am of the firm view that the appellant has come forward with this application seeking amendment of the written statement with a malafide motive of complicating the case and delaying the disposal of the case as far as possible. It is not a fit case where the appellant should be allowed to withdraw his vital admission of facts made in the written statement as well as in evidence. I am not at all satisfied that the appellant has made any such erroneous admission of facts. I find no merit in this appeal which I, hereby, dismiss with costs. Counsel fee Rs. 700.00.