Dinesh Chandra Gupta vs Rajendra Kumar Khanna
2019 Latest Caselaw 1234 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 19
 

 
Case :- S.C.C. REVISION No. - 7 of 2019
 
Revisionist :- Dinesh Chandra Gupta
 
Opposite Party :- Rajendra Kumar Khanna
 
Counsel for Revisionist :- Rama Goel Bansal
 
Counsel for Opposite Party :- Pradeep Saxena
 

 
Hon'ble Manoj Kumar Gupta,J.

Counter affidavit filed today is taken on record.

Heard counsel for the parties.

The instant revision is directed against the order dated 3.1.2019 passed by Judge Small Causes Court in SCC Suit No. 51 of 2015, whereby the application 42-Ga filed by the defendant-revisionist seeking amendment in the written statement has been rejected.

By the amendment sought, the defendant-revisionist tried to bring on record the fact that Sanjeev Kumar Khanna and Rajeev Kumar Khanna, sons of the plaintiff are the owners and landlord of the disputed premises and not the plaintiff. It is alleged that the sons of the plaintiff purchased an open piece of land by registered sale deed dated 10.1.1975. Thereafter they constructed shops over the same including two shops in possession of the defendant-revisionist. They also let out the shop to various tenants including the defendant-revisionist. The plaintiff collected rent from the defendant-revisionist on behalf of his sons. There exist no relationship of landlord and tenant between the plaintiff and the defendant-revisionist. The plaintiff had no locus to institute the suit.

The amendment has been rejected by the court below by observing that the assertion made in plaint that the defendant-revisionist is tenant, has been admitted by him in paragraphs 1 and 12 of the written statement. Therefore, the defendant-tenant is seeking to withdraw the admission by the amendment sought. It has also been observed that the explanation furnished by the defendant-revisionist for not being able to raise the above pleas in the original written statement regarding lack of knowledge of english language is not correct as he had signed the written statement and other documents in English. It has also been observed that several dates had been fixed for cross-examination of PW-1 but the defendant-revisionist had been seeking adjournment. The application seeking amendment has therefore been rejected.

Counsel for the revisionist submitted that in the entire plaint, the plaintiff did not assert that he is the owner or landlord of the disputed premises. It is further submitted that in paragraphs 1 and 13 of the written statement, it is specifically pleaded that the defendant-revisionist is tenant on behalf of the plaintiff's sons. Thus, according to her, the amendment sought was only to elaborate the existing pleadings and no admission was being withdrawn.

On the other hand, learned counsel for the plaintiff-opposite party submitted that the defendant-revisionist has admitted that he had been tendering rent to the plaintiff, therefore it is not open to him to resile from the said stand.

A perusal of the plaint assertions would show that in the entire plaint, there is no pleading that the defendant-revisionist is tenant on behalf of the plaintiff, although it is asserted that he had served a notice determining the tenancy and the defendant-tenant had not complied with the notice.

Paragraph 1 of the plaint reads as follows :-

"That the defendant was tenant in occupation and possession of a shop bounded as blow, constructed in Khanna Market, situated at 725, Sufi Tola, Opp. Ghujral Petrol Pump Bareilly, on a monthly rent of Rs.3000/- exclusive of Municipal Taxes and the tenancy of defendants starts from 1st day of each English calender month."

Paragraph 1 of the written statement, which is reply to paragraph one of the plaint, reads as follows :-

"That in contents of para No.1 of the plaint it is true that defendant is tenant of the shop for and on behalf of defendant his Son Sanjeev Khanna in Khanna Market, Sufi Tola, Opp. Gujral Petrol Pump Shyamganj Road, Bareilly. It is also admitted that the tenancy starts from 1st day of each calender month. Rest contents are wrong and not admitted and are denied. Boundaries of the shop are wrong."

Paragraph 12 of the written statement which has been referred to in the impugned order reads as follows :-

"That true facts are that defendant is the tenant of the shop of plaintiff on monthly rent of Rs.600/- (Rs. Six hundred) per month including all taxes w.e.f 01/06/2007 and defendant is regularly paying rent of the shop to the plaintiff but the plaintiff' never issued any rent receipt to the defendant inspite of repeated requests and reminders and has always avoided to issue the rent receipt. The defendant had paid the rent upto July 2015 to the plaintiff."

It would be apposite to refer to paragraph 13 of the written statement also :

"That in the month of August 2015, defendant tendered the rent to the plaintiff's son by hand and demanded receipt of rent but the plaintiff's son refused to issue the rent receipt and also refused to receive the rent of the shop. The defendant in the month of September, 2015 again tendered the rent of two months i.e., August and September, 2015 amounting to Rs.1200/- (one thousand two hundred) but the plaintiff again refused to receive the rent and to issue rent receipt, hence the rent of August and September 2015 was sent through EMO on 03/1/2006 but plaintiff refused to receive the EMO."

A bare perusal of paragraph 1 and 13 of the written statement would show that the defendant-tenant had specifically pleaded that he is tenant on behalf of sons of the plaintiff. He also asserted that the rent was sought to be tendered to the plaintiffs' sons personally but when he refused to accept the same, it was sent by money order on 3.1.2016. No doubt, it is admitted in the written statement that rent was also tendered to the plaintiff but it could not be said that the defendant-revisionist, by seeking the amendment referred to above, has withdrawn any admission or has taken up any new case. The amendment sought is only clarificatory in nature and to elaborate the pleadings already taken. The defendant-revisionist has only clarified how sons of the plaintiff, on whose behalf he claims himself to be tenant, is owner and landlord of the demised premises and not the plaintiff and consequently, no relationship of landlord and tenant exist between the parties.

It is well settled law that at the stage of deciding the amendment application, the correctness of stand sought to be introduced by amendment, is not to be examined. The issue as to whether the defendant-tenant, by attornment, has admitted the plaintiff as landlord, would be decided in the suit, after evidence is led by the parties.

The amendment was sought at the very initial stage of the trial and therefore it cannot also be said to be belated. The explanation given by the tenant for not being able to raise the plea earlier is that he is not very well versed with english language. It would not mean that he could not even sign in english. The court below has grossly misconstrued the explanation furnished.

The view taken by the court below in rejecting the amendment application, is therefore not sustainable in law. The impugned order is accordingly set aside. Counsel for the revisionist has agreed to pay Rs.10000/- as cost to the plaintiff for amendment application being allowed. The cost shall be paid within as week from today, failing which the instant revision shall stand dismissed and the impugned order would get revived.

In case the cost as directed above is paid, the revisionist shall incorporate the amendment in the written statement within next one week and the plaintiff-opposite party shall be at liberty to file replication within three weeks. The trial court shall thereafter proceed with the trial of the suit in accordance with law.

The revision stands allowed with the above directions.

Order Date :- 14.3.2019

skv

(Manoj Kumar Gupta, J.)