* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 17.1.2014
+ CM(M) 35/2014
SURINDER KUMAR ..... Petitioner
Through: M.Z. Chaudhary & Mr. Q.H.
Khan, Adv. for petitioner.
versus
VED PRAKASH GUPTA & ORS ..... Respondents
Through: None.
% MR. JUSTICE NAJMI WAZIRI (Open Court)
1. The petitioner has impugned an order dated 17.10.2013 whereby his application under Order 6 Rule 17 CPC for amendment of written statement filed in the original suit before the Appellate Court was dismissed. The suit was filed by one Smt. Uma Devi and Sh. Ved Prakash Gupta claiming that Shop bearing Municipal No.498, Ward No.7, Chhota Bazar, Shadhara, Delhi was let out to late Sh. Khacheru Mal, father of Surender Kumar, defendant No.2 (the appellant before the Appellate Court and the petitioner in this petition) on a monthly rent of Rs.14.87. Initially only Smt. Uma Devi was the plaintiff but having sold the suit property to Sh. Ved Prakash Gupta vide sale deed dated 20th CM(M) 35/2014 Page 1 of 7 October, 1982, the latter was impleaded as plaintiff No.2. It was the case of the plaintiffs that the suit property was let out for eleven months. A rent note dated 31.5.1944 was executed by her. Upon expiry of the said period, Sh. Khacheru Mal became the statutory tenant. His subsequent demise was not intimated to her by his sons who continued to occupy the premises and pay rents to her. Upon subsequently coming to know of his demise on 7.9.1970, she refused to accept further rents from the defendants-occupants of the suit premises and called upon them to vacate it. In default whereof, this suit was filed seeking a decree of possession as well as for mesne profits and damages. Defendant No. 2 while contesting the suit questioned its maintainability on the ground that it was barred by Section 50 of the Delhi Rent Control Act, 1958. He claims to have become a statutory tenant since the deceased tenant had died as a contractual tenant. On merits, defendant No.2 pleaded that Sh. Khacheru Mal became an owner of the premises since it was in his possession and of his family for more than 50 years through the first tenant. He contends that thus he became the owner of the property since he was in possession of the same for more than 30 years without any challenge of his title. The petitioner relied upon both the contentions i.e. (i) the suit was barred because of Section 50 of the Act since he had allegedly become a CM(M) 35/2014 Page 2 of 7 statutory tenant and (ii) that otherwise he became an owner of the premises through adverse possession.
2. Counsel for the petitioner states that the defence of the tenant was three-fold, firstly that prior permission was not taken under the Slums Areas (Improvement and Clearance) Act, 1958; secondly, that the suit itself is barred under section 50 of Delhi Rent Control Act and thirdly, the fact that he is owner of the property in terms of adverse possession over the so-called tenanted premises. He has suffered the adverse order in the eviction proceedings and now he wishes to drop the issue of adverse possession. He states that an eviction petition should sustain itself on its own strength, and be considered on its own legs and the changing of legal stand by the respondent/tenant, would not make any difference to the substantive merit of eviction petition. Therefore, according to him the impugned order is bad in law for the reasons aforesaid.
3. The Appellate Court dismissed the application on the ground that although a defendant can set up alternative pleas but the proposed amendments were such as would substitute in a new cause of action which were inconsistent or mutually destructive. A plea which amounts to defeating a legal right accruing to the opposite party; or being malafide or causing injustice to the other parties cannot be allowed. The Appellate Court relied upon the judgment in Dewan Kaur vs. Savitri Devi, 154 CM(M) 35/2014 Page 3 of 7 (2008) DLT 211 (DB) which held that where a defendant denied the title of the landlord, he would not be entitled to the protection of the Delhi Rent Control Act and consequently, the bar of section 50 would not apply. During cross-examination, DW-1 had denied the suggestion that Sh. Khacheru Mal was the tenant in the suit premises. He claimed ownership through his father. He further denied the suggestion in the cross-examination that he had deposed in his affidavit that "if the plea of ownership of the defendant is not proved then in the alternative, the defendants are contractual tenants". As per the case put up by the plaintiffs themselves, the plaintiffs were held to be the owners of the suit property on the basis of evidence on record. The defendants' claim of ownership by way of adverse possession was rejected. The Trial Court relied upon the case of Dewan Kaur (supra). The Appellate Court considered the law laid down in Jai Jai Ram Manohar Lal vs. NBM Supply, 1970 (1) SCR 22, Panchdeo Narayan vs. Jyoti, AIR 1983 SC 462, Hundari Bewa vs. Keluni Dei, AIR 1984 Orrissa 37, Akkanagamma vs. Nageshwariah, AIR 1968 Mysore 266, Gautam Sarup vs. Leela Jetly, (2008) 7 SCC 85 and finally on B.K. Narayana Pillai vs. Parameshwaran Pillai, 2000(1) SCC 712 to conclude that the principles of amendment applicable to amendment of a plaint would be equally applicable for amendment of written statement, but the said principles would be less CM(M) 35/2014 Page 4 of 7 prejudicial in respect of amendment of a written statement, thus calling for more liberalism in the latter instance. It reasoned however, that while defendants would have a right to set up alternative pleas, it could not extend to amendments which would substitute a new cause of action on the basis of which the original defence was raised or be inconsistent or mutually destructive allegations.
4. The Appellate Court reasoned that the main defence of the defendant was that his father had become the owner of the suit premises by way of adverse possession, although in the cross-examination he had denied the suggestion that he was a statutory tenant. The Court relied upon this Court's judgment dated 27.2.2012 in RFA No.74/2002 which held that the tenant would be entitled to a protection under section 50 of the DRC Act only where the relationship of the landlord and a tenant was not disputed. Therefore, once a statutory tenant refuted title of his landlord, he forfeits the protection under the Act. In the present case, the moment he refused the title of the plaintiff, he lost protection of the DRC Act. The Trial Court had already rejected the defendants' case of adverse possession. The case before the Appellate Court was whether the defendant No.2 could be permitted to amend his written statement so as to draw the plea of adverse possession at the stage of appeal. The amendment was disallowed because i) the defendants had lost the CM(M) 35/2014 Page 5 of 7 protective cover under DRC Act, which accrued a valuable right in favour of the plaintiffs; ii) that serious injustice would be caused by permitting the amendment and that too at the appellate stage if the defendants were to drop their plea of adverse possession. It would also amount to setting up an entirely new case in appeal. That having suffered an adverse order on the basis of the defence raised before the Trial Court, the defendant could not be permitted to get around his defeat by amending pleadings at the appellate stage.
5. In view of the preceding discussion, this Court is of the view that conclusion arrived at and the reasons therefor as plausible and indeed sound; the impugned order does not suffer from any infirmity warranting the interference of this Court in its revisionary jurisdiction. The alternative pleas raised by the petitioner are mutually exclusive and destructive of each other. It was open to the defendant No.2 to base his defence either on the basis of adverse possession or as a statutory tenant under the DRC Act. Having chosen to press both the defences, the defendant suffered the inevitable fate of his mutually conflicting contentions ultimately destroying each other. Either of his defences cannot now be revived where both have suffered a legal death. I am unpersuaded by the arguments of the learned counsel for the petitioner to CM(M) 35/2014 Page 6 of 7 arrive at a different view and to set aside the impugned order. The petition is without merit and is accordingly dismissed.
NAJMI WAZIRI (JUDGE) JANUARY 17, 2014/ak CM(M) 35/2014 Page 7 of 7