Nalini Dutta vs Naginder Sharma
1997 Latest Caselaw 1088 Del

JUDGMENT

Manmohan Sarin, J.

1. This revision petition is directed against an order dated 29.3.1995, passed by the learned Civil Judge, rejecting the plaintiff/petitioner's application under Order VI, Rule 17, CPC, for amendment of the plaint. The learned Civil Judge has declined the amendment application, finding the same to be highly belated and an abuse of legal process. The learned Civil Judge also took note of the pleadings between the parties in relation to other litigation and the position taken there by the plaintiff as being contrary to the amendment sought by the plaintiff/petitioner.

2. The facts leading to the filing of the present revision petition may be briefly noted:

(i) The plaintiff/petitioner in October, 1989 filed a suit of permanent injunction seeking to restrain the respondent from dispossessing the petitioner without due process of law from premised bearing No. 198/35-B, Ist Floor, Ramesh Market, near East of Kailash, New Delhi, as shown red in the site plan at- tached. Further, a direction was sought to restrain the respondent from disconnecting the electricity and water supply coming to the portion of the plaintiff/petitioner on the first floor of the said tenanted premises. It would be pertinent, at this stage, to extract some portions of the plaint as filed.

"That the plaintiff is a tenant of the defendant with respect to two rooms, one kitchen and one latrine-bath on the first floor and roof rights on the second floor on which one latrine-bath on the second floor at a monthly rent of Rs.600/- including the water charges, but excluding electricity charges which are pay- able according to the reading of the sub-meter installed in the room of the plaintiff......".

"That besides that, the defendant has been putting lock on the main entrance gate around 8.00 p.m. and he has been keeping the keys with him. Previously there have been two sets of keys-one kept by the defendant and the other kept by the plaintiff. Due to this restriction, neither the plaintiff nor her husband can have access to and for the premises after 8.00 p.m. That not only this, the defendant is also creating problems for the plaintiff and her husband in the use of roof which forms part of her tenan- cy. The defendant and his wife, without even knocking at the door, straightway enters into the rooms of the plaintiff and there is no privacy in the house."

"That as the supply of water to the first floor has been going through the motor and there are two switches for switching on the motor-one at the ground floor which is under the control of the defendant and the other is in the bath room on the second floor. Whenever the plaintiff or her husband switches on the switch from the top floor, the defendant switches off the switch from the ground floor, as a result of which no water comes to the portion of the plaintiff and they have to take water in buckets from the mohalla."

3. The plaintiff/petitioner on 14.1.1993, moved the present application under Order VI, Rule 17, CPC. It was avered in this application that while arguing the case on 06.1.1993, it was noted that though in the body of the plaint, the plaintiff/petitioner had claimed roof as part of the tenanted premises, by inadvertence plaintiff/petitioner failed to claim any relief in respect of the said portion, in the prayer clause. Plaintiff/petitioner further sought permission to file a fresh plan showing the complete tenanted premises of first floor and second floor in red as the same was inadvertently not shown in the plan filed with the plaint. The plaintiff/petitioner based his case on inadvertence to claim the relief in the prayer clause and omission to indicate the extent of the tenanted premises in the site plan, while the same was claimed in the body of the plaint. The tenancy is oral and there is no written agreement with regard to the same.

4. I have heard learned Counsel for the parties. Learned Counsel for the respondent has argued that the impunged order was fully warranted and justified in the facts and circumstances of the present case. Learned Counsel has relied on the following facts and circumstances in favour of his contention that the amendment sought was an abuse of legal process, a belated on and contrary to the admissions made by the petitioner himself and the findings reached by the Court.

(i) In the application for contempt petition dated 2.7.1991, filed by the petitioner wherein he claimed to be a tenant in respect of the first floor only;

(ii) The averments in the petition under Section 45 of the D.R.C.

Act, where the petitioner mentioned the tenanted premises as first floor;

(iii) In the application moved by the petitioner for deposit of rent, tenanted premises mentioned as first floor;

(iv) Respondent filed a petition under Section 14(1)(a) of the D.R.C.Act, wherein the petitioner claimed that the petition was not maintainable being for part of the tenanted premises. The objection of the petitioner was rejected by the Additional Rent Controller vide order dated 24.8.1994. The Rent Controller Tribu- nal in the appeal against the order passed by the Additional Rent Controller in R.C.A. No.5/94, dismissed the petitioner's objec- tion of the petition being for part of the tenanted premises.

(v) The learned Civil Judge while disposing of the application under Order XXXIX, Rule 1 and 2, CPC, filed by the petitioner, had restrained the respondent from dispossessing the petitioner only from the first floor of the premises. It was held that the petitioner had failed to produced any document to show tenancy over the roof, while the respondent challenged this order in an appeal, the petitioner accepted the same and did not agitate or press the claim for relief with regard to the roof rights.

(vi) Petitioner response to a notice received sent a reply on 16.11.1998, through Mr.R.K.Taneja, accepting that the tenanted premises consisted of first floor without mentioning of the trace. The said notice was signed by the petitioner also. Only subsequently in March, 1989, but way of an after by thought did the petitioner dispute the correctness of the reply to the notice as regards the extent of tenancy.

(vii) Reliance was also placed on the address given by the petitioner being that of first floor of premises bearing No. 198/35-B, 1st floor, Ramesh Market, near East of Kailash, New Delhi.

5. Learned Counsel of the respondent further argued that after filing the suit in 1988, the petitioner did nothing till 1993 despite the aforesaid findings in judicial proceedings and has only now sought the amendment in the plaint to include the claim with regard to the extent of tenancy. It was further submitted that the said relief has itself become instructions inasmuch as the petitioner himself moved an application that the petitioner has been dispossessed by the respondent by locking the gate of roof on the second floor to grab possession on 9.3.1989. In the light of the foregoing, the respondent's contention is that the present application is an abuse of legal process and tantamount to taking a contradictory stand to what has been stated by the petitioner in the pleadings and documents mentioned above as well as the judicial findings reached.

6. I have perused the pleadings, documents and the judicial record re- ferred to above. Reliance by the respondent on the averments made in the pleadings and the documents filed, which as per the respondent tantamount to admission by the petitioner regarding extent of tenanted premises would be relevant to a decision on merits with regard to the extent of the ten- anted premises. The respondent is correct in his submissions that the amendment has been sought at a belated stage and the relief sought may also could well be infructuous since it is claimed that the gate to the roof has been locked. the objections raised as well as the legal grounds including the plea of waiver or res judicata would be available for dislodging the plaintiff when a decision is to be taken on merits with regard to the extent of the tenanted premises. The question to be considered at the stage of allowing or dis allowing the amendment, merits of the amendment are not be'gone into. Looking at it from this perspective, one clearly finds that the petitioner initially in October, 1988 it self while filing the suit, did claim that he was the tenant with regard to the first floor and roof rights on the second floor on which one latrine-bath were situated. In para 4 of the plaint, as noted above, a further averment was made that the defendant was creating problems for the petitioner and her husband in the use of the roof which formed the part of the tenancy. Further that the defendant and his wife without knocking at the door straightaway enters into the room of the defendant and there is no privacy in the house. Again in para 9 of the plaint, an averment was made regarding one of the switches of the electric motor being in the bathroom on the second floor, which was operated by the petitioner.

It would be seen from the foregoing that the petitioner's right at the outset had made averments with regard to having tenancy rights for the roof and second floor as being part of the tenancy. The subsequent events cannot negate or obliterate the fact that the original plaint included the claim of roof rights. It is a different matter altogether that the petitioner may or may not be able to succeed in this plea or the petitioner is dis-believed on his failure to prove the extent of tenancy as including the second floor. However, these would not be tenable grounds to reject such an amendment.

7. The respondent may succeed in his plea of the petitioner having abandoned his claim or have waived all rights in respect of the tenancy of second floor/roof rights. Further in case the C.M.(M). filed by the petitioner, which is said to have been admitted against the order of the Rent Controller Tribunal upholding the judgment of the Additional Rent Controller in the petition under Section 14(1)(a) of the D.R.C. Act is dismissed, the plea may be barred by res judicata.

8. I am of the view that the petitioner had laid the foundation and made averments in the claim with regard to being a tenant in respect of roof rights and the second floor. Thr plaintiff/petitioner cannot be non-suited with regard to the said plea, at this stage, without allowing an amendment and the petitioner being permitted to claim relief. Reliance in this connection may be placed on East India Hotels Vs. Oberoi Continental Hotel Employees, (1995) R.L.R.(49), where the Court permitted an amendment in the plaint to incorporate a relief, the foundation for which was laid in the plaint. It would be open for the respondent to oppose the claim of the petitioner being a tenant in respect of second floor having roof rights on all admissible grounds including by placing reliance on the the averments of the petitioner in the pleadings as well as to the omissions of the petitioner in asserting any rights with regard to the second floor by raising plea of abandonment or waiver etc., if admissible. In short, it would be open for the respondent to oppose the said claim on all admissible grounds. Accordingly, the amendment deserves to be allowed. Considering that the amendment was sought belatedly and that the petitioner had been negligent in seeking the amendment, the respondent can be compensated with costs and directions can be given for early disposal of the suit. Accordingly, the impugned order is set aside, subject to payment of Rs. 3,000/- as costs, out of which Rs.1,500/- be paid to the respondent and Rs.1500/- be paid to the Delhi Legal Services Authority. The trial of the suit also deserves to be expedited. The amended plaint is already on record. The Trial Court would endeavor to expeditiously dispose of the suit as far as practicable on or before 31.12.1998.

The revision petition is allowed with the aforesaid directions.