Vikram Pershad And Ors. vs Sat Narain Dalmia
1995 Latest Caselaw 255 Del

JUDGMENT

Devinder Gupta, J.

(1) This is an application seeking amendment of the written statement. It is alleged that at the time of hearing of Ia 504/92 (an application under Order 12 Rule 6 of the Code of Civil Procedure) an argument was addressed on behalf of the defendant that he has been under a bonafide impression that the entire terrace above Bata Shoe was bearing municipal no.1500, therefore, the same number was mentioned in the rent agreement and also in the written statement. Court thereafter directed the defendant to submit a certificate from the Municipal Corporation of Delhi to the effect that the entire terrace was given a number `1500', but the defendant has not been made available the certificate so far. Defendant made enquiries otherwise from the House Tax Department of M.C.D. and now has realised that the entire ground floor in possessed of Bata Shoe Company bore Nos. 1500 to 1502 and there is no separate number for the roof/terrace above the shop and it has also come to his notice that the entire building in possession of Bata Shoe Company and terrace above has been given Nos. 1500 to 1502. It is also stated in the application that at the time when the premises were let out, the landlord did not know as to what was the municipal number of the terrace above Bata Shoe Company, therefore, in the said rent note, number 1500 was given to the premises in question though the defendant has been in occupation of the entire terrace bearing No.1500-1502 above Bata Shoe Company and in this background amendment to the written statement is sought.

(2) The application is vehemently opposed by the learned counsel for the plaintiff that allowing the amendment will amount to allowing the plea of admission to be converted into a plea of denial for which reference is made to para 6 of the plaint and the stand taken by the defendant in para 6 of the written statement. It is contended that the stand taken by the defendant in para 6 of the written statement amounts to the defendant admitting that he was inducted as a tenant with respect to premises No.1500 only.

(3) I have heard the learned counsel for the parties and have been taken through the original pleadings as well as the amendment which is sought to be incorporated.

(4) There is no manner of doubt that a defendant cannot be allowed to amend the written statement which will have the effect of converting a plea of admission into a plea of denial. But it is also necessary that plea of admission should be clear and unequivocal. Reading of the plaint and the written statement originally filed in this case would show that there is no clear and unambiguous admission made that the defendant was a tenant of only a portion of the terrace above the property bearing No.1500-1502, Ward Iii, Inside Shiv Ashram, S.P. Mukherjee, New Delhi which will be evident in case written statement is read as a whole and not para 6 in isolation. Submission made on behalf of the plaintiff cannot be accepted since learned counsel for the plaintiff wants the court to read only para 6 of the plaint and para 6 of the written statement. Pleas cannot be read in isolation. Preliminary objections 1 to 5 of the written statement along with paras 1 to 5 on merits of written statement, if read together, would show that the plea raised by the defendant in the written statement has been that the tin shed along with open terrace above the Bata Shoe Company was let out by Mahavir Prashad to Sat Narain Dalmia and Mukesh Chand Jain. The defendant was also allowed to make construction on the terrace at his own costs. In view of the averments made in these paragraphs, it cannot be said that there is any categorical or unambiguous admission made on the part of the defendant that what was let out to him was only a portion of the terrace which bears premises No.1500. By way of amendment, the defendant is now trying to explain the reason why in the rent note, reference was made to premises as '1500', otherwise according to the defendant, for all intents and purposes, it was open terrace with a tin shed on a part thereof which was let out to him. Written statement otherwise makes no change in the original stand taken by the defendant except by explaining an ambiguity for which necessity arose, according to the defendant only because of the plaintiff making an application under Order 12 Rule 6 of the Code and because of the arguments which were addressed at the bar. No harm or prejudice is likely to be caused to the plaintiff in case the amendment is allowed since the suit is still at the initial stage. Inconvenience can well be compensated in terms of money by awarding costs in plaintiff's favor.

(5) The application is accordingly allowed. The defendant is permitted to carry out the amendments in his written statement subject to payment of Rs.1,000.00 as costs. Needless to add that observations made while deciding the application will not be taken as an opinion expressed on merits and will not prejudice the plaintiff in opposing the amendments on merits. Proposed amended written statement is directed to be taken on record. Replication, if any, to the amended written statement be filed within four weeks from today. Ia 11504/92 In view of the fact that defendant has been permitted to carry out amendment, this application does not survive and is dismissed as infructuous. S.1530/91 To be listed on May 15, 1995 for framing of issues.