Smt. Chandrawati(Deceased) ... vs Kishore Kumar Gupta
2023 Latest Caselaw 6033 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 21
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 760 of 2023
 

 
Petitioner :- Smt. Chandrawati(Deceased) Thru. Legal Representative Om Prakash And Another
 
Respondent :- Kishore Kumar Gupta
 
Counsel for Petitioner :- Goverdhan Lal,Mohd. Shakeel
 

 
Hon'ble Manish Mathur,J.

1 Supplementary affidavit filed today is taken on record.

2. Heard learned counsel for petitioners. In view of order being passed, notices to opposite party stand dispensed with.

3. Petition has been filed under Article 227 of the Constitution of India challenging order dated 06.12.2022 passed in Rent Appeal No.48 of 2011 whereby application for amendment of written statement under Order VI Rule 17 of the Code of Civil Procedure (hereinafter referred to as the Code) has been rejected.

4. Learned counsel for petitioners submits that one Kishore Kumar Gupta had filed an application under Section 21 (1) (a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as U.P. Act No.13 of 1972) for release of the shop in question which was registered as P.A. Case No.42 of 2009. In aforesaid proceedings, mother of petitioners, Smt.Chandrawati was arrayed as the sole opposite party.

5. It is submitted that in paragraph-1 of the application, the applicant indicated himself to be owner and landlord in respect of the shop in question and in paragraph-2, it was indicated that Smt. Chandrawati was the tenant of the premises in question with such tenancy devolving upon her with death of her husband Mr. Ram Dev, who was the original tenant. It is submitted that aforesaid application was allowed by means of order dated 17.09.2011 against which the predecessor in interest of petitioners filed Rent Appeal No.48 of 2011 and during pendency of which, she passed away on 11.12.2013. Consequent upon her demise, petitioners being her sons and heirs were substituted in her place and upon coming to know about facts narrated in application under Section 21 of U.P. Act No.13 of 1972, sought to file a separate written statement which was rejected on 06.01.2016 and became final since no challenge there to was effected.

6. Learned counsel for petitioners submits that upon enquiry being made by petitioners, it came to their knowledge that in fact landlord of the premises in question was one Smt. Prem Lata Bhargava and not Mr. Kishore Kumar Gupta as alleged in application under Section 21 of U.P. Act No.13 of 1972. Petitioners also came to know that Smt. Prem Lata Bhargava subsequently passed away although her son Mr. Pramod Bhargava was alive.

7. Upon coming to know of the aforesaid fact, petitioners filed an application under Order VI Rule 17 of the Code seeking amendment in the original written statement filed by Smt. Chandrawati. The said amendment has been rejected by means of impugned order on the ground that an entirely new case is being set up by petitioners.

8. Learned counsel for petitioners submits that as has been indicated in amendment application, Smt. Chandrawati was an illiterate lady and applicant Mr. Kishore Kumar Gupta misled her into filing of written statement and acknowledging him as the landlord of the premises in question. It is submitted that it was due to the knowledge regarding actual landlord of the premises in question which necessitated filing of amendment application and the District Court has clearly erred in law in rejecting amendment application without considering the fact that the application under Section 21 of U.P. Act No.13 of 1972 was not at all maintainable at the behest of Mr. Kishore Kumar Gupta who was neither owner nor landlord of the premises. It is also submitted that once the petitioners' application for filing of additional written statement was rejected, they were left with no other option but to seek amendment in the initial written statement. Learned counsel for petitioners has placed reliance upon judgment rendered by this Court in Col. (Retd.) Harpal Singh Dhillon and others v. District Judge, Lucknow and others.

9. Upon consideration of submissions advanced by learned counsel for petitioners and perusal of material on record, it appears that by means of impugned order, petitioners' application for amendment in the original written statement has been rejected primarily on the ground that it seeks to set up an entirely new and contradictory case to the one stated in the initial written statement filed by original defendant.

10. It is evident that in paragraphs 1 and 2 of application filed under Section 21 of U.P. Act No.13 of 1972, it has been specifically averred that the applicant is owner and landlord in respect of premises in question of which opposite party (Smt. Chandrawati) is the tenant at the rate of Rs.17/- per month. It is also stated that previously said shop was in tenancy of Mr. Ram Dev and after his death, his wife, Smt. Chandrawati became tenant of the shop in question.

11. Smt. Chandrawati was the only defendant in aforesaid case, who is also the predecessor in interest of petitioners filed her written statement and in paragraph 1 thereof, admitted that applicant, Mr. Kishore Kumar Gupta was the landlord of premises in question in which she was the tenant and also used to reside in the said shop.

12. Aforesaid application under section 21 was allowed, against which Rent Appeal No.48 of 2011 was filed, during pendency of which Smt. Chandrawati passed away and petitioners were substituted in her place, whereupon they filed application for filing additional written statement, which was rejected whereafter the present application for amendment of written statement was filed which has also been rejected by means of impugned order.

13. A perusal of amendment application indicates the fact that petitioners sought incorporation of amendment to the effect that the original defendantSmt. Chandrawati was an illiterate lady and applicant Kishore Kumar Gupta took advantage of the said fact and by misleading her, filed written statement recording her admission that he was the owner/landlord of the premises in question. Another amendment sought was for incorporation of paragraph 1-Ka to the effect that Kishore Kumar Gupta was not owner/landlord of the premises in question and in fact it was one Smt. Prem Lata Bhargava who was the landlord of the premises and upon her passing away, it is her son Pramod Bhargava who is in fact the landlord of the premises in question. Another amendment sought is that said Pramod Bhargava has issued a certificate dated 27.01.2016 to petitioners certifying that he has never executed any sale deed with regard to the premises in question and that he is in fact the owner and landlord of the said premises.

14. From aforesaid facts, it is quite apparent that the original defendant being predecessor-in-interest of petitioners in her written statement has clearly admitted Kishore Kumar Gupta to be landlord of premises in question. Petitioners have made an assertion that Smt. Chandrawati was in fact an illiterate lady and was misled into filing written statement. However, it is also a noticeable fact that the application under Section 21 of U.P. Act No.13 of 1972 was filed in year 2009 and was decided on 17.09.2011 whereafter Rent Appeal No.48 of 2011 was filed by Smt. Chandrawati. Memorandum of Appeal is on record as Annexure-3 to petition and does not indicate any averment denying Kishore Kumar Gupta as Landlord of the premises in question. As such, it is evident that the original defendant, Smt. Chandrawati has accepted Kishore Kumar Gupta as landlord of the premises in question not only in her written statement but also in the appeal filed by her in year 2011. Even during course of two years of proceedings under Section 21 of U.P. Act No.13 of 1972, Smt. Chandrawati never resiled from admission made by her in written statement.

15. It is only after advent of petitioners in place of Smt. Chandrawati as her heirs that the aspect of Kishore Kumar Gupta as landlord of the premises in question is sought to be resiled from. It is settled law that heirs of original parties to the dispute upon substitution step into the shoes of the original parties and do not have any independent right whatsoever to set up an entirely new case. In the present case, it is evident that the predecessor in interest of the petitioners not only in her written statement but even in memorandum of appeal has never questioned the right of Kishore Kumar Gupta as landlord of the premises in question. As such, it is evident that petitioners are clearly not only setting up a new case but are also resiling from admission made by their predecessor in interest.

16. Hon'ble the Supreme Court in State of Bihar & others v. Modern Tent House and another reported in (2017) 8 SCC 567 has clearly held while considering aspect of amendment in terms Order VI Rule 17 of the Code that by means of amendment, a completely new and contradictory case cannot be set up by any party to the proceedings. It has also clearly been held that admission once made cannot be resiled therefrom unless in the proof of specific documentary evidence and indication that admission initially made was on a wrong concept or against evidence.

17. Upon applicability of aforesaid judgments in the present case, it is evident that petitioners as heirs of the original defendant are not only setting up an entirely new case but are taking a stand which is clearly contradictory to admission made by their predecessor in interest.

18. Learned counsel for petitioners has placed reliance on judgment in Col. (Retd.) Harpal Singh Dhillon(Supra), a perusal of which makes it evident that the aspect of Order VI Rule 17 of the Code which was under consideration in the said judgment was only with regard to definition of the term 'due diligence' and was not on the aspect with regard to setting up of a completely new case or resiling from an admission made. As such, in the considered opinion of this Court, the aforesaid judgment is clearly inapplicable in the facts and circumstances of the present case.

17. In view of discussions made herein above, it is evident that by means of amendment application, petitioners being heirs of original defendant are seeking to set up a completely new and contradictory case, which also amounts to resiling from an admission made by their predecessor in interest. In light of judgments referred to herein above, no exception can be found to order impugned in the petition and as such the petition being devoid of merit is dismissed.

Order Date :- 24.2.2023

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