U.L. Kalsi vs K.S. Bhattacharya
1990 Latest Caselaw 509 Del

JUDGMENT

Suananda Bhandare, J.

(1) ADMIT.

(2) Since a very short point is involved in the petition, I have heard the learned counsel for the parties and proceed to decide the main petition itself.

(3) This revision petition is directed against the order of the Additional Rent Controller, Delhi dated 1st February 1990. The petitioner filed a petition under section 14(l)(e) read with Section 25-B of the Delhi Rent Control Act (hereinafter referred to as the Act) in the court of the Rent Controller. During the pendency of the said petition, before the Additional Rent Controller passed the order on the petition, the petitioner filed an application under Order 6 Rule 17 of the Code of Civil Procedure (hereinafter referred to as the Code) seeking amendment of the petition.

(4) One of the amendments sought by the petitioner was that he wanted to specifically mention that the premises were let out to the respondent for residential purpose. The application was opposed by the respondent. The respondent submitted that since the petitioner had failed to mention in his petition that the premises were let out for residential purpose, the petition deserves to be rejected under Order 7 Rule 11 of the Code because the petition had not disclosed the cause of action. The Additional Rent Controller by way of the impugned order dismissed the application for amendment and also rejected the petition under Order 7 Rule 11 of the Code.

(5) It was contended by the learned counsel for the petitioner that in paragraph 4 of the eviction petition, the petitioner had specifically mentioned that the premises are residential in nature, however, in paragraph 18 of the said petition he had not mentioned that the premises were let out to the respondent for residential purpose. It was, therefore, necessary to move the application for amendment because a technical objection was likely to be raised by the respondent in that regard. Learned counsel submitted that the petition could have proceeded even without the amendment because the respondent himself in his written arguments had admitted that Ihe respondent was occupying the premises for residential purpose. Learned counsel submitted that the amendment ought to have been allowed because not only no prejudice would have been caused to the respondent but apart from technical objection, subsequent events had to be brought on record by the said amendment. Learned counsel submitted that the Additional Rent Controller erred in rejecting the petition under Order 7, Rule 11 of the Code.

(6) On the other hand, learned counsel for the respondent submitted that the law required that there is a specific averment in the petition itself that the premises were let out to the respondent for residential purpose and since the petitioner had failed to plead the necessary ingredient of bona fide requirement the Addl. Rent Controller rightly rejected the petition itself under Order 7, Rule 11 of the Code. Learned counsel submitted that it was open to the petitioner to file a fresh petition for eviction since the petition was rejected under Order 7, Rule 11 of the Code. He further submitted that since the dismissal of the petition was not under Section 25-B of the Act, the revision petition filed in the High Court was not maintainable because a remedy of appeal was available to the petitioner.

(7) I find substantial force in the contention of the learned counsel for the petitioner. In paragraph 2 of the impugned order the Additional Rent Controller has rejected the amendment application by observing that the proposed amendment would result in a de novo trial and it is in the interest of the petitioner to file a fresh petition rather than amend the petition. I find this observation untenable. If the petitioner can file a fresh petition, there is no reason why the amendment cannot be allowed. Rather, if the amendment was allowed, at least some of the evidence which was recorded would have been useful for disposing of the petition and only on the amended pleadings, additional evidence would have been necessary. I also find that while rejecting the petition under Order 7 Rule 11 of the Code the Additional Rent Controller has not given any reason why he has come to the conclusion that the petition does not disclose any cause of action as contemplated under Section 14(l)(e) of the Act. I also find no merit in the submission of the learned counsel for the respondent that the revision petition is not maintainable and the petitioner should have filed an appeal against the impugned order because the petition was rejected under Order 7, Rule Ii of the Code. In my view, this question is covered by the judgment of the Supreme Court in Vinod Kumar v. Narain Devi, 1980 RLR(SC) 159. The proviso to sub-section (8) of Section 25-B of the Act is exhaustive. Rejection of the petition in the present case has resulted in refusing to give possession of the premises to the petitioner. Thus, a revision petition was maintainable under Section 25-B(8) of the Act.

(8) In the circumstances, the revision petition is allowed. The impugned order dated 1st February, 1990 of the Additional Rent Controller is set aside. The amendment application of the petitioner is allowed. Parties to appear before the Additional Rent Controller on 10th December, 1990. Amended petition be filed before the Additional Rent Controller on that date. The Additional Rent Controller is directed to afford an opportunity to the respondent to file his written statement to the amended petition. Trial court records be sent back forthwith. No costs.