* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: February 13, 2009
Date of Order: March 02, 2009
+ IA No.13808/2008 in CS(OS)1449/2002
% 02.03.2009
Mohan Taneja ...Plaintiff
Through: Mr. Rajiv Kataria, Advocate
Versus
Laxmi Bai ...Defendant
Through:
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
ORDER
IA No.13808/2008
1. This application under Order 6 Rule 17 read with Section 151 CPC has been made by the defendants to amend counterclaim and add paragraph 7-A in the counter claim and to change the prayer clause as a consequence thereof.
2. Defendants filed a counter claim of Rs.33,34,000/- against the plaintiff on account of damages alleging that the plaintiff was liable to pay damages @ Rs.6000/- per day with effect from 11th July 2002 for use and occupation of the premises in question since the plaintiff did not vacate the premises despite the lease having been terminated on 30th June 2002 (in any case with effect from 11th July 2002). The defendants now want to amend the counter claim and want to add the following paragraph as paragraph 7A in the counter claim:
CS (OS) 1449/2002 Mohan Taneja vs. Laxmi Bai Page 1 Of 3 "7-A. That the rent became due i.e. from 01.04.2002 @ of Rs.25,000/- P.M. till the date the plaintiff vacated the premises i.e. 10.08.2004 hence the total rent which is payable by plaintiff is for a period of 29 months i.e. 01.04.2002 to 31.08.2004 at Rs.25,000/- p.m. total amounting to Rs.7,75,000/- besides the rent the defendants are also entitled to the interest as well on the detailed payment, as well as the penalty of Rs.6,000/- per day as stipulated in the agreement but the defendants does not press the same for the period subsequent to already claimed as no court fees is being affixed on the said period."
3. It is obvious that the defendants in their counter claim want to claim rent for a period of 29 months with effect from 1st April 2002 to 10th August, 2004 @ Rs.25,000/- per month. This rate of rent was known to the defendant when she filed counter claim in February, 2003 and a part of the rent had already become due and defendant could have filed the counter claim in this respect. In any case, when the premises was vacated in August, 2004, defendant knew what rent had become due at that time and she could have filed application to amend the counter claim claiming rent up to 10th August, 2004 by amending the counter claim immediately. However, defendant did not chose to amend the counter claim and she filed the instant application for amendment of the counter claim on 10th November 2008 i.e. after lapse of more than four years of the plaintiff's vacating the premises. The arrears of rent, as per law can be recovered within a period of three years. The counter claim of the defendants is hopelessly barred by time and therefore amendment sought by the defendants in the counter claim for recovery of the alleged amount is barred by limitation.
CS (OS) 1449/2002 Mohan Taneja vs. Laxmi Bai Page 2 Of 3
4. The amendment sought by defendant is not clarificatory in nature or giving details of something already stated. The amount of rent was known to the defendants. The date of vacating the premises by the plaintiff was also known to the defendants. Since the defendant did not amend the counter claim within the period of limitation, any amendment now allowed shall gravely prejudice the rights accrued to plaintiff because the claim having become time-barred.
5. I find no reason to allow amendment in the counterclaim as sought by the defendants. The application is hereby dismissed. CS(OS)1449/2002 List the matter before the Joint Registrar for cross examination of PW-1 on 27th April 2009, the date already fixed.
March 02, 2009 SHIV NARAYAN DHINGRA J. rd CS (OS) 1449/2002 Mohan Taneja vs. Laxmi Bai Page 3 Of 3